Action fob Bbeaoh of Contract—Sale of Potatoes—Letters—Proposal and Acceptance.—In an action for damages for breach of a contract to sell and deliver two carloads of potatoes the question whether the correspondence between the parties showed the existence of the alleged contract is one of law for the court; and to show a binding contract it must appear that defendant’s proposal was unqualifiedly accepted by the plaintiff, without any condition amounting to a new proposal.

Id.—Bequest for Shipment—Uncertainty as to Conditions—Circumstances and Conduct of Parties—Construction of Contract — Where there is uncertainty or ambiguity as to whether plaintiff intended to make a request as to the shipment of the potatoes a new condition of his acceptance of defendant’s proposal to deliver them, the court may look to the surrounding circumstances and subsequent conduct of the parties to discover whether such uncertainty was not removed or waived. In such case the contract must be interpreted in the sense in which defendant believed that plaintiff understood it.

Id.—Belation of Acceptance to Proposal—Identity of Language not Essential.—It is not essential to the acceptance of defendant’s proposal that plaintiff should use the same identical language used in the proposal Any form of expression showing clearly an intention to accept on the terms proposed or to consent to the same subject-matter in the same sense is sufficient if coupled with no new conditions.

In.—Part Performance—Statement of Further Inability to Perform Contract not Questioned.—Where the defendant partly performed the contract, and without questioning its existence put his further failure to perform upon the sole ground that he could not procure the quantity of potatoes agreed-to be sold, the plaintiff had the right to assume that defendant understood plaintiff’s acceptance as plaintiff understood, as constituting a contract between them.

Id.—Notice of Cancellation fob Inability—Readiness to Pay not Required.—Defendant having notified the plaintiff of his inability to perform and of having canceled the contract, plaintiff was not called upon to show its ability or readiness to pay.

Id.—Amendment of Complaint after Submission.—The court could permit an amendment of the complaint after the evidence had been closed and the cause submitted and taken under advisement and before decision, to cover a variance in the proof by which the defendant could not be misled, and in respect of which defendant did not request permission for further evidence nor make any showing that the amendment would result to his injury.

Id.-—Evidence—Market Value of Potatoes.—Where the contract called for delivery of the potatoes from Aurora, Oregon, to plaintiff, residing in Sacramento, on April 20th, evidence to prove the market price of potatoes in Oregon, and the market price at Sacramento less freight from Oregon on carload lots, five days prior to that date, was not prejudicial where it appeared that the market price at no time after the 20th was less than such evidence showed, and the court adopted the lowest price at any point shown by the evidence.

Id.—Usage—Time and Place of Payment.—Evidence was admissible to show a usage that in similar contracts payment was to be made at Sacramento after inspection of the potatoes, the seller sending a draft with a bill of lading and invoice; and it could not be prejudicial to show that such was the usage of plaintiff upon similar contracts where the potatoes were not purchased for or delivered to plaintiff.

Id.—Usage as to Confirmation of Sale after Acceptance—-Conflicting Evidence.—Where the evidence was conflicting as to whether there was a usage between the parties to confirm the sale after acceptance of the proposal, such usage cannot be regarded as established in opposition to the findings of the court.

Id.—Waiver of Usage.—If such usage existed, it was competent for the parties to waive or disregard it, and it is sufficient that the evidence shows that both parties treated the offer as accepted without further confirmation on the part of either.