Hooke

This is an appeal by the defendant from a judgment in favor of plaintiff in an action to recover damages for breach of an agreement to deliver spruce cannery shook.

With reference to this agreement, the court found:

The trial Court further found “that the reasonable time for delivery of said spruce cannery shook was within the season for canning of summer fruit in the year 1917 at said Watsonville, which season was approximately from the 16th day of May to the 15th day of October in said year.” It was also found that only 13,000 of said shook were delivered by the defendant and that defendant refused to deliver to the plaintiff, after demands therefor, the balance of said shook called for by the said agreement.

One of the defenses pleaded by the defendant in its answer was that the contract between the parties had been, by mutual agreement between plaintiff and defendant, duly canceled and the delivery of said 147,000 shook w'as waived by plaintiff. The defendant offered to prove by oral testimony that performance of the contract had been waived by the plaintiff' and that the contract had been, by mutual agreement, abandoned. The court refused to hear evidence upon these…