Mills

Plaintiff sued defendants individually and as copartners doing business under the name of The Russell and Mount Eden Salt 'Company, for damages for breach of contract for failure to deliver salt in accordance with the demand of plaintiff, under the terms of a written contract between the parties. Trial was had before a jury. The preliminary proofs were made and the contract offered. in evidence. The court refused its admission upon the ground of its incompleteness and uncertainty, treating the writing as an executed contract of sale. Plaintiff contended that the contract should be construed as an executory contract of sale, or as an option of purchase, which option had become effectively binding upon defendants by subsequent orders for the delivery of salt made upon defendants within the time prescribed in the contract. It sought and obtained leave to amend its complaint by showing the specific orders for salt which it had made upon defendants pursuant to its agreement, and the court permitted these amendments to be made. In so doing, however, the court declared that no change in pleading could affect its construction of the contract, which it regarded as void for uncertainty.…