Creighton

Plaintiff sues upon a written contract reading as follows:—

In his complaint for a first cause of action, plaintiff alleges delivery under the contract of part of the fruit between December 2 and December 6, 1900, and the balance between March 15, 1901, and April 4, 1901, except certain fruit referred to in a second cause of action. He alleges that there remains unpaid $690.26.

In the second cause of action it is averred that by the terms of said written contract the defendant was liable for certain other oranges which became overripe and decayed because plaintiff was not permitted to deliver the fruit, to plaintiff’s damage of $330.25. Defendant answered, admitting the execution of the alleged written contract; alleged that by its terms defendant was .bound to receive only merchantable oranges; that on January 1, 1901, a severe frost greatly damaged the fruit then on plaintiff’s trees and rendered them unsound and not merchantable, and therefore not within the contract; that thereupon, for the purpose of adjusting the loss by frost, an oral contract was entered into by the parties altering the written contract so that plaintiff should deliver, within a reasonable time, all of…