Wood

Action to recover damages for breach of contract in the sale of four carloads of Zinfandel grapes. The grapes were purchased by the plaintiff from the defendant Wood through defendant Ely as a broker acting for Wood. The purchase price was forty-five dollars per ton, which was paid at the time the cars were loaded by Wood at stations near Modesto, in Stanislaus County. Two ears were consigned to Walla Walla, Washington; one to Portland, Oregon, and one to El Paso, Texas. On the arrival of the grapes at their respective destinations the four ears were found not to contain Zinfandel grapes only, but each car contained a mixed variety of grapes, principally Tokay, Mission, and Zinfandel varieties. The consignees refused to accept the grapes, for the reason that they contained varieties other than Zinfandel. There was no evidence of the amount of each variety of grapes shipped in any one car, nor was there any evidence of the amount of each variety of grapes shipped as a whole in the four cars. The only evidence of the value of the grapes shipped was that given by the defendant Ely. He stated that Mission grapes were worth five dollars per ton more than Zinfandel and that other…