Hiraide

The defendant appeals from a judgment rendered against it for balance of the purchase price owing to the plaintiff on a contract for potatoes sold a,nd delivered.

The following facts were found by the court, all of which were established by the evidence: On June 6, 1917, defendant agreed to buy from plaintiff two carloads of potatoes of 270 sacks each, to be delivered f. o. b. ears at Anaheim, California, at the price of three cents per pound. The first carload was delivered and paid for. On the sixteenth day of June the plaintiff tendered for delivery a second carload of potatoes ■ weighing 30,975 pounds. Defendant inspected the potatoes and found that some of them were sunburned; thereupon, as a condition of acceptance of those potatoes, the parties entered into a written modification of their contract in the following terms, signed by the plaintiff: “I hereby accept one-half payment for 270 sacks potatoes 30925 lbs. at $3.00 cwt. $464.63 and agree to stand behind the shipment and get the balance as soon as returns come. ’ ’ Thereupon, defendant paid to plaintiff said sum of $464.63 on account of said carload of potatoes and thereafter shipped them and caused them, to be sold…