Morrell

This is an appeal from an order denying a new trial in an action for damages for the alleged failure of the defendant, San Tomas Drying and Packing Company, to accept and pay for a certain lot of prunes under the terms of a written contract between the parties to the action.

This case was before this court upon a former appeal, the decision of which is reported in 13 Cal. App. 305 , [ 109 Pac. 632 ], and in which the facts of the case are quite fully and correctly set forth. Upon the retrial of the cause the errors of pleading and attempted proofs adverted to in that decision were in the main corrected or avoided by the plaintiffs; and, while the appellant still contends that the action was prematurely brought, the adverse views of this court upon the former appeal as to that issue must be adhered to as the law of the case.

As to the appellant’s contention that the rejected prunes did not meet in point of quality the requirements of the contract, and that for that reason they were entitled to reject them as a whole when offered as a whole, the evidence shows the following to be the facts: The prunes were grown upon several orchards owned or leased by the plaintiffs in the…