Seelye

This is an action to recover damages for an alleged breach of contract to deliver fruit. The case. was tried without a jury, findings and judgment went for defendant, and plaintiff appeals.

The action was originally commenced by the Southern California Canning Company, for which corporation plaintiff here was, by proper order, substituted, the former’s rights having passed to the latter. The present plaintiff had nothing whatever to do with the making of the contract in question, or with any of the acts or transactions here involved. For convenience, therefore, the designation “plaintiff,” as here used, will refer to the original plaintiff in the action.

From the record it appears that in the spring of 1914 plaintiff and this defendant entered into a contract whereby the former agreed to purchase, ■ and the latter agreed to sell, defendant’s yearly crop of peaches for a period of five years —1914 to 1918, both years inclusive. The contract says nothing as to the time when payment should be made. Defendant delivered the crops of 1914 and 1915 under this agreement. The fruit delivered in 1914 was paid for; but for that delivered during the year 1915, defendant received nothing.…