Price

The plaintiff was the owner of certain fruit which he consigned to the defendant for sale, and upon its arrival in San Francisco the defendant stored it in a warehouse. Shortly after its arrival, the defendant sold the fruit at a price which was not satisfactory to the plaintiff, and the sale was rescinded. The court finds that “said sale was not made in pursuance of the authority given by the plaintiff to the said defendant. ’ ’ Afterward the plaintiff brought the present action for the recovery of the fruit or its value. The plaintiff’s ownership of the fruit is not denied by the defendant, but in his answer he alleges that he had made certain advances and expenditures thereon, by reason of which he had acquired a lien upon the fruit, and the right to retain the possession from the plaintiff until these advances were paid; and also until he should be paid a commission for the sale which had been rescinded. _ The action was tried by the court without a jury, and judgment rendered in favor of the plaintiff. The defendant moved for a new trial, which *984 was denied, and the present appeal is from this order. No appeal was taken from the judgment.

Upon an appeal from an order…