King

This action was brought to recover damages for an alleged breach by defendant, a corporation, of a contract to purchase barley. Judgment passed for plaintiffs and defendant appeals.

The contract upon which plaintiffs base their right of action, a copy of which is set forth in the complaint, is as follows:

(Italics ours.)

It will be noticed that under the terms of this contract plaintiffs, as sellers, are to deliver the barley “as soon as possible after threshed.” Defendant set up in its answer a different writing, which it claims evidences the agreement as finally made. That writing, though dated May 1, 1920, was signed about May 25, 1920, under circumstances presently to be narrated. So far as it is material to our present inquiry, this second instrument is as follows:

(Italics ours.)’

It will be noticed that according to the terms of the last-mentioned writing, the barley was to be delivered “within 100 days from the date hereof,” i. e., prior to August 10, 1920. Contemporaneously with the signing of that writing by Wassum and before any barley had been delivered, defendant paid to plaintiffs the $1,000 which, under the terms of the first agreement, was to be paid…