Foote

This is an appeal from a judgment and order denying the defendant's motion for a new trial in an action for damages for the alleged breach of a written contract for the sale and purchase of a crop of grapes.

The record shows that the defendant, through its duly authorized agent, visited the plaintiff’s vineyard, at Linden, San Joaquin County, on October 9, 1909, and there inspected the latter’s ripened crop of grapes; and thereupon and after such inspection entered into a written contract for the purchase of the entire crop, by the terms of which the buyer was to furnish the boxes, and the seller was to pick and deliver the grapes f. o. b. at Peters, a near-by station, for transportation to the defendant at its place of business in Oakland. On October 15th and 16th two car-loads of grapes were shipped from Peters to Oakland, which arrived at their destination on or about the nineteenth day of October. Thereupon a telephone communication occurred between the defendant and plaintiff, in the course of which the former told the latter not to ship any more grapes at that time. A few days later further talks over the telephone were had, as to the details of which the evidence is…