In Error to the Circuit Court of the United States for the District of Oregon.

Action by Albert Eilienthal and Philip N. Rilienthal, partners as Lilienthal Bros., against J. R. Cartwright. Judgment for defendant, and plaintiffs bring error.

On March 7, 1902, the plaintiffs in error, who were plaintiffs in the court below, entered into two contracts with the defendant in error, defendant in the court below, by the terms of which the latter agreed to complete the cultivation of about 35 acres of land In Harrisburg, Or., and harvest, cure, and bale the hops grown thereon for the two years of 1903 and 1904, and deliver the same to the plaintiffs between the 1st and 31st days of October of Hie respective years at the agreed price of 10 cents per pound. Each contract provided for the delivery of 30,000 pounds of hops grown on the premises described, and such hops should not be the product of fuggle vines, nor a first year’s planting, etc. In 1903, and again in 1904, plaintiffs offered to perforin their part of the contracts for the respective years by tendering payment therefor; but the defendant refused to perform his part of the contracts by the delivery of the hops. Thereafter plaintiffs brought two separate actions against the defendant to recover in each case damages for breach of the particular contract.

The defense in each case, as set up in the answer, was that after the contract was made, on the 7th day of March, 1902, “the plaintiffs represented and agreed to and with the defendant that if the defendant should sell the premises, or any part thereof, described in the said contract, that the said contraed should be and become void and inoperative as to the land so- sold, and then and there agreed with the defendant that he might sell the said lauds described in the said contract, and that the defendant would be released by the said sale from any obligation to the plaintiffs under or hy virtue of said contract.” The defendant sold the farm in question on the 8th day of November, 1902, and did not thereafter cultivate the same, or raise any hops thereon, or have any interest in the crops that were raised thereon, and did not deliver any hops to the plaintiffs. It was alleged in the defendant’s answer that plaintiffs ought not to be permitted to allege that the contracts described In the complaint were either of them in force at any time after the 8th day of November, 1902, or to allege or prove that the defendant was obliged, under (lie terms of said contracts, to deliver to the plaintiffs the hops raised upon the said premises, or any part thereof, or to allege or prove that the defendant was guilty of any breach of (he terms or. provisions of said contracts, or to allege or prove that the plaintiffs had been damaged in any sum whatever by the alleged broach of said contracts relied on in the complaint.

The cases were by order of the court consolidated and tried together before the same jury, resulting in a verdict for the defendant in each ease. In the course of the trial the court admitted testimony, over the objection of the lila intiffs, tending to show that with respect to a prior agreement between the parties, entered into in December, 1900, respecting the sale of hops, the agent of the plaintiffs told the defendant that, the contract would be void or at an end if he sold his land. The court also admitted testimony, over the objection of the plaintiffs, tending to show that before and after the signing of the contracts on March 7, 1902, the agent of the plaintiffs told the defendant that if he sold his land that would end the .contracts for the delivery of the hops.