
    [Civ. No. 2775.
    First Appellate District, Division Two.
    April 8, 1919.]
    ANGELO POZZI, Respondent, v. ALPINE EVAPORATED CREAM COMPANY, Appellant.
    
       Appeal — Conflicting Evidence — Unwarranted Proceeding.—Where the evidence is clearly conflicting, and there is ample evidence to justify the verdict of the jury, an appeal from the judgment is an unnecessary and unwarranted proceeding, in the absence of some error occurring at the trial.
    ' APPEAL from a judgment of the Superior Court of Monterey County. J. A. Bardin, Judge. Affirmed.
    The facts are stated in the opinion of the court.
    
      Zabala & Sargent for Appellant.
    C. P. Lacey for Respondent.
   LANGDON, P. J.

This is an appeal by the defendant from a judgment in favor of plaintiff for $3,577.60, alleged to be due as the purchase price of milk delivered by plaintiff and his assignors to the defendant company. There was no dispute about either the delivery or the value of the milk. As a defense, defendant contended that plaintiff and his assignors had entered into oral agreements to deliver to defendant all milk produced at their dairies for a period of one year in consideration of the payment of the highest market price therefor by the defendant to them; that the plaintiff and his assignors delivered milk for a period of approximately three months only and then refused to deliver longer. Defendant alleged that by reason of the failure of plaintiff and his assignors to deliver according to their alleged contracts, defendant has been damaged in the sum of three thousand dollars, and defendant filed a counterclaim asking for that amount. Appellant admits that the only question in the ease is: Did the plaintiff and his assignors agree to ship the milk produced on their several dairies to defendant for a period of one year? It then contends that the verdict is contrary to the evidence. Prom an examination of the evidence, it appears that it was clearly conflicting and that there was ample evidence to justify the verdict of the jury. Under such circumstances, and in the absence of a single assignment of error occurring at the trial, it would seem that the rule of law is sufficiently clear and well established to make an appeal to this court an unnecessary and unwarranted proceeding.

The judgment is affirmed.

Haven, J., and Brittain, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 5, 1919.

All the Justices concurred.  