citation">40 So.2d 555. The difference in the facts is not so great as to affect the principle involved. Here a contract had been entered into between the grower and the dealer for the sale of fruit at a certain price, and the latter deposited with the former the sum of $1,000 which was to be "applied on the purchase price and * * deducted ratably" as the fruit was gathered. (Italics supplied.) It was stipulated in the contract that if the buyer failed or refused to pick the fruit, the grower would accept the advance as liquidated damages and relieve the buyer from any further claim.

From the stipulation of facts it appears that of the total crop of 8,333 boxes 3,999 boxes were taken by the dealer, and he then reneged on his contract and tendered to the grower $1,879.28, representing the purchase price of the fruit picked at 72 cents a box, less the one-thousand-dollar deposit.

The same procedure was followed as in the case of Mayo v. Market Fruit Company, supra, culminating in an order of the Commissioner requiring the dealer to pay the full amount of $2,879.28, in default whereof his license should stand suspended.

As we did in the companion case, we approve the procedure; however, we *Page 366 think that the balance was not properly computed. On the total purchase price of $2,879.28, the dealer was entitled to the earned part of the deposit, being the ratio that the amount of fruit picked bore to the number of boxes in the entire crop, or $479.89; so the order should have required him to pay $2,399.39.

In other respects the order of the Commissioner is approved.

Affirmed in part. Reversed in part.

ADAMS, C.J., and TERRELL, CHAPMAN, SEBRING and HOBSON, JJ., concur.

BARNS, J., dissents.

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