Stone v. Porter-Burnham Co.

Pursuant to the terms of a written contract the plaintiff delivered to the defendant a crop of potatoes for which the defendant agreed to pay at the rate of two cents per pound. This action was brought to recover the unpaid balance of money due for the merchandise so delivered. Judgment was entered in favor of the plaintiff for the amount demanded, and* the defendant appeals from that judgment.'

[1] The answer of the defendant alleged that prior to the delivery of any of the potatoes it was learned that the potatoes were not of the quality specified in the written contract; that thereupon a new agreement was entered into whereby the first contract was rescinded and a new agreement of sale was made at the reduced price of $1.75 per hundred pounds; that pursuant to said new agreement the defendant received the potatoes thereafter delivered to it.

The court found against the defendant on the affirmative, defense thus presented. The only question presented on this appeal arises upon the contention of appellant that this finding of the court was not sustained by the evidence. The writing alleged to constitute the new agreement was received in evidence in connection with the testimony…