Turner

I dissent. It will be observed that appellant’s real contention is that respondent should have finished harvesting within forty days after the first grain was ripe; that for this purpose he should have used more than one harvester; and that because he did not use more than one harvester, and did not complete the harvesting within the forty days, therefore he failed to “ harvest all said grain in a, thorough and farmer-like manner, without waste or unnecessary loss.” But respondent did not contract to harvest the grain at any particular time, except that it should be done “ during the current season of .1893,” and it is clear that it was done within that season. He did not contract that he would use more than one eighteen-foot combined harvester. He began to harvest as soon as the grain was ripe and fit for harvest, with an eighteen-foot combined harvester, and thereafter worked “ continuously until the entire harvest was completed.” While he was so engaged he did the work “ in a thorough and farmer-lilce manner, without waste or unnecessary loss.” He, therefore, complied with his contract. Ho doubt it would have been to appellant’s advantage if respondent had put on two or three…

This is an action to recover balance due on a contract for harvesting grain for the defendant. Judgment was for plaintiff, and defendant contends that there should be a deduction of eight hundred dollars from the judgment, on the ground that plaintiff did not harvest the grain in a good and farmer-like manner as he had contracted to do, and the evidence, and a stipu *64 lation. made to serve in lieu of evidence, shows that there resulted an unnecessary loss to that amount.

It was stipulated in the contract that plaintiff “ will harvest, thresh, and sack all of the grain now growing on the Fruit Vale estate in Fresno county, and belonging to the said Kearney during the current season of 1893; that he will harvest all of said grain in a thorough and farmer-like manner, without waste or unnecessary loss; that he will begin such harvesting as soon as any of said grain is thoroughly ripe and fit for harvest, and will thereafter work continuously until the entire harvest is completed. That for the purpose of performing said work he will use one or more eighteen-foot combined harvesters, which shall be and be maintained in thoroughly good working condition.”

A great deal of testimony…