Leonhart

This is an action brought by the repondent against the appellant to recover damages, claimed to have been sustained by respondent through the failure of appellant to carry out the terms of a contract for the purchase of grapes.

The amended complaint alleges that respondent delivered to appellant a certain quantity of different kinds of grapes specified in the contract, and by reason of the delay of appellant in accepting the grapes as they matured, a large portion of the grapes which were delivered had .shrunk in weight to an amount exceeding forty-five tons; that a portion of the grapes, the Malagas, was rejected altogether; that the Malaga grapes were then sold for the highest market price, and the appellant charged the difference between the amount actually realized and the contract price.

The action was tried before a jury, which rendered a verdict in favor of the plaintiff. The appeal is from the judg ment, and from the order denying defendant’s motion for a new trial.

Appellant demurred specially to the amended complaint on the ground that it could not he determined therefrom what portion of the shrinkage in an amount exceeding forty-five tons occurred in the Zinfandel…