1. Trial (§ 419*) — Motion fob Nonsuit — Denial—Waiver.

Error in the denial of a nonsuit at the close of plaintiff’s testimony is waived by defendant’s introduction of testimony on its own behalf, without moving at the close of all the testimony for the direction of a verdict.

[Ed. Note. — For other cases, see Trial, Cent. Dig. § 982; Dec. Dig. § 419.*]

2. Contracts (§ 202*) — Construction-—Performance—“Furnish.”

A contract by which plaintiff agreed to operate defendant’s salmon cannery required plaintiff to provide a sufficient force to pack 2,700 cases per day, and bound him to “receive” the fish on the wharf at N., to clean and prepare them in the fishhouse for canning, and transport them to the cannery. Held, that plaintiff’s obligation to pack 2,700 cases per day depended on defendant’s undertaking to furnish the fish, and that the word “furnish” was used in the sense of “deliver,” so that plaintiff was only required to pack such fish as was actually delivered by defendant at the wharf where plaintiff was bound to receive them.

LEd. Note. — For other cases, see Contracts, Cent. Dig. §§ 918-928; Dee. Dig. § 202.*

For other definitions, see Words and Phrases, vol. 4, pp. 3010-3013.]

3. Contracts (§ 202*) — Performance—Loss.

Where a contract for the operation of defendant’s cannery only required plaintiff to pack such fish as was furnished by defendant on a particular wharf, defendant was not liable for loss sustained by the dumping of fish which were never brought to the wharf, in the absence of proof that plaintiff was ever informed that the fish were in the scows or lighters ready for delivery, or was given an opportunity to count and inspect them.

[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 918-928; Dee. Dig. § 202.*]

4. CONTRACTS (§ 353*) — PERFORMANCE-INSTRUCTIONS.

In an action on a contract for the operation of defendant’s cannery, the court charged that it was claimed by defendant that ,by reason of insufficient and careless work 2,045 cases of salmon were totally spoiled, that if the jury found that any number of cases were so spoiled solely by reason of plaintiff’s neglect, or want of diligence, and without defendant’s fault, then defendant would be entitled under its counterclaim to damages suffered, etc. It then charged that the jury was entitled to consider evidence that in the canning industry a given number of cans or cases usually spoiled for one reason or another, and determine whether the fish lost was more than the usual loss in similar operations, and, if not, plaintiff had performed his contract with due diligence. Bold, that such latter instruction had no reference to the measure of damages which defendant might recover for spoiled cans, but was proper as referring solely to the question whether plaintiff had substantially performed his contract to entitle him to recover thereon.

[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1829-1844; Dec. Dig. § 353.*]

5. Contracts (§ 322*) — Performance—Evidence—Materiality— Sales by Defendant.

In an action for services performed by plaintiff in carrying out a contract to operate defendant’s salmon cannery for the season of 1910, defendant having pleaded breach of contract by plaintiff in not having sufficient help to take care of the work required, and that the same was improperly done, defendant’s books of account, showing sales of salmon for that season, were admissible to show performance by.plaintiff, that the salmon was packed in accordance with the contract, and that defendant had accepted plaintiff’s work, and sold the product thereof.

[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1306, 1307, 1389, 1347, 1348, 1465, 1492, 1534r-1542, 1754, 1768, 1772, 1801, 1802, 1804-1808, 1815, 1816; Dee. Dig. § 322.*]

6. Appeal and Error (§ 1058*) — Reception of Evidence — Subsequent Exclusion — Cubing Error.

"Where, in an action on a contract to operate defendant’s cannery, plaintiff introduced certain evidence of inadequacy of the canning implements and machinery which was not within the issues, and defendant offered testimony that plaintiff’s failure to operate the cannery to the contract capacity resulted from insufficient skill in operating the machines, the court’s subsequent striking of an unresponsive answer that the contract capacity was beyond the capacity of defendant’s soldering machines cured the error involved in admitting it.

’[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4178-4184; Dee. Dig. § 1053.*]

7. Appeal and Error (§ 1056*) — Prejudice—Rulings on Evidence.

Where, in an action on a contract to operate defendant’s cannery, defendant filed a counterclaim for plaintiff’s alleged breach of the contract, but no damages were awarded thereon, defendant was not prejudiced by the sustaining of an objection to a question by which it was sought to prove the market price of Alaska red salmon in the year in question to show the extent of defendant’s damage through the loss of salmon spoiled in packing by plaintiff.

[Ild. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193; Dec. Dig. § 1056.*]