Morton

This is an action for damages for the alleged breach of a contract to purchase milo maize. The jury returned a verdict for plaintiff, and from the judgment entered thereon the defendant appeals.

Some of the milo- was delivered and payment therefor was made by defendant. It is claimed by plaintiff that he was ready and willing to- deliver the balance within the time provided for by an oral extension of the time for delivery, but that defendant wrongfully refused to- accept it. Thereafter plaintiff sold the undelivered milo in the open market for $29 per ton. This action was brought to recover the difference between that and the contract price.

The facts of the case, as revealed by the pleadings and proof, are substantially these: On September 16, 1920, at Brawley, in this state, plaintiff and defendant executed a written contract which, so far as it is material to the questions presented, reads: “W. Morton has this day sold, ’and the Albers Bros. Milling Co., -a corporation, of El Centro, California, has this day bought 250 tons of good No. 1. marketable milo now being grown or located Mead and Arnold Ranches, to be sacked in Standard, new jute bags at the purchase price of…