Epitomized Opinion
This is an action to recover the sale price of a carload of onions. Plaintiff claimed that he had sold to the defendant a carload of onions at a given price, had delivered them, and defendant had refused payment. Defendant denied that he had bought the carload of onions, and contended that he took the onions on consignment and sold them pursuant to the agreement that he should do that and account to the owner of the onions for the sale price less the expense incident to making the sale. At the trial the defendant offered evidence to show that .he took the onions on consignment. He also offered evidence tending to show that he purchased them upon a conditional sale, namely, upon the ability of the purchaser to procure sacks in which to ship the onions before the end of the week, which the purchaser could not do, On the other hand, the owner offered evidence to show that the sale was a completed sale at a fixed price. As the jury found for the plaintiff, the defendant prosecuted error. In sustaining the judgment of Judge F. H. Wolf, the court held:
1. That it could not be said as a matter of law that the verdict was manifestly against the weight of the evidence.
2. That no error was committed in the court’s refusal to permit proof that the defendant had deposited the balance due plaintiff after they had been sold as claimed upon commission with the clerk of the court, and the tender'*and deposit at most were nothing more than an offer to compromise the dispute between the parties.