Bidegaray

The defendant appeals from a judgment against him for $1,250. He presents a single question of law in support of the appeal, based on an objection to the admission of evidence over the objection that it was an attempt .to change the terms of a written contract by parol in contravention of section 1698 of the Civil Code. The respondent maintains that the section has no application to the facts of the case.

The respondent sued on two counts, the second being in the ordinary form of an action for debt. In the first count it was alleged that, in May, 1918, the defendant sold to plaintiff 500 lambs at the agreed price of seven dollars per head; that the plaintiff then paid the defendant $250 on account, and the defendant agreed to deliver the lambs to the plaintiff at Helm Station, in Fresno County, on or about May 26, 1918; that plaintiff was ready and willing to pay the balance of the purchase price on May 26th and thereafter; that the defendant had failed and refused to make delivery, and, on information and belief, that defendant had sold the lambs to others on or about May 26th, and still retained the $250 paid him; and that plaintiff had been damaged in the sum of $1,750. The…