Ash

This is an appeal from a judgment in favor of the defendant in an action to recover damages for the breach of a contract. The plaintiff was the owner of a peach orchard in the county of Fresno upon which there was growing a crop of peaches during the year 1914. In the month of July of that year the plaintiff and the defendant entered into a contract in writing by the terms of which the defendant agreed to purchase the said growing crop of peaches, and to harvest and market the same upon the terms and conditions set forth in said contract. Among these were the following stipulations: " Said second party shall at his own cost and expense tie up the trees, the twine to be furnished by said second party therefor. ... It is expressly understood and agreed that all of the work herein designated shall be done at the time and in the manner herein set forth, under the direction of the said party of the first part, and at such times as he shall designate and to his satisfaction.” The defendant, upon the execution of this contract, entered into possession of the premises and proceeded with the performance of his part of the agreement, except that he did not tie up a considerable number of…