Rosenberg

J., pro tern.—On the twenty-ninth day of January, 1918, the parties hereto entered into a written contract for the sale of a crop of figs, the property of the defendant, to the plaintiff.

We quote from the contract the following paragraphs:

During the season there was grown upon defendant’s land a total of 64,801 pounds of figs. Of this amount only 44,499 pounds were delivered to the plaintiff. The remaining 20,302 were sold by the defendant to another party at 13% cents per pound for eighteen thousand one hundred pounds and 7 cents per pound for 2,202 pounds. After the sale of the 20,302 pounds the plaintiff demanded possession of the same from the defendant, and the figs not having been delivered, brought this action for damages caused, as alleged, by the defendant’s failure to deliver the figs.

The cause was tried before a jury and the verdict was in favor of the defendant. Judgment was entered accordingly and from such judgment the plaintiff appeals.

It is set forth in defendant’s answer that after the 44,499 pounds of figs were dried and delivered, heavy and destructive rains fell in Merced County and injured and destroyed said 20,302 pounds of figs and made the same…