1. Landlord and tenant <&wkey;33 — Oral agreement of lessor, in consideration of lessee’s remaining in possession following lessor’s breach of contract, held supported by sufficient consideration.

Where a lessee of rice lands, on failure of' the lessor to furnish sufficient water for irrigation purposes as required by the lease, signified his intention of exercising his option to terminate the lease, hut was prevailed on not to do so, a subsequent oral agreement of the lessor that, if the lessee would continue in possession of the land and care for the crops planted he would repay all rentals on lands failing to produce normal crops, relinquish all claims for rentals not paid on such lands, and pay the expenses incurred by lessee in planting and caring for the rice on nonproducing lands, was not invalid for want of consideration.

2. Frauds, statute of <&wkey;131(l) — Oral agreement of lessor held not to “alter” or modify written lease, within statutory prohibition.

Where a lessor of rice lands failed to furnish sufficient water for irrigation as required by the lease, whereupon the lessee signified his intention of exercising his option to terminate the lease, but was prevailed on by the lessor not to do so, a subsequent oral agreement, prior to the expiration of the term, that, if the lessee would continue in possession of-the land and eai*e for the crops planted, lessor would repay all rentals on lands failing to produce normal crops, relinquish all claims for rentals not paid on such lands for the year, and pay the expenses of planting and caring for the rice thereon, was not an alteration of the written lease within the purview of Civ. Code Cal. § 1698, providing that a written contract may not be altered, otherwise than by a contract in writing or an executed oral agreement.

[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Alter — Alteration.]

3. Appeal and error <&wkey;1064(2) — Court’s allusion to oral agreement as modification of written lease not prejudicial, where question of existence of agreement left to jury.

In an action by a lessee of rice lands for damages for the failure of the lessor to furnish sufficient water for irrigation purposes, as required by lease, the court’s allusion in his instructions to an oral agreement of the lessor, as a modification of the written lease, was not prejudicial error, where the question as to whether such agreement had in fact been made was left to the jury.

4. Appeal and error <&wkey;1056(l) — Admission of hearsay testimony that purchaser of land told lessee h© might continue in possession, held not prejudicial. '

In an action by a lessee of rice lands for his wrongful exclusion therefrom, following the execution of a contract for the sale thereof by the lessor to a third party, the admission of hearsay testimony that the latter told plaintiff he was anxious to have him continue on the land, and for him to tell the lessor so, was not reversible error, being harmless, where plaintiff further testified that, following such conversation, he saw lessor, who said he could not continue the old lease, but would give him another on a different rental charge, such purchaser testified as to his version of the conversation, and lessor testified that he sold the land, but claimed that the purchaser had told him to cancel the leases.

5. Landlord and tenant &wkey;>95 — Lessor not empowered by executory contract of sale to cancel leases.

A contract by a lessor to sell leased lands, which provided that title thereto was to be clear of incumbrances, except lessees’ leases; that, when the balance of the purchase price was paid, lessor would turn over to the purchaser all moneys received by him on account of the leases and assign the latter; that the balance of the purchase price should be paid and title conveyed within 30 days after irrigation bonds were voted and issued, but that, if they were not voted within 6 months, the agreement was to terminate; that the balance due should be paid on or before a date on which the rentals were available, on which date the purchaser should pay to the lessor all amounts due on advances made by him to tenants on the land, and the lessor turn over to the purchaser all mortgages securing the same and the tenant’s leases — wasnot a contract of sale within the lease reserving to lessor the right to sell the leased lands at any time during the life of the lease; the purpose or intent of the parties not being to make a present sale, nor 1,o disturb the lessees’ possession, the title not having passed, and, the purchaser being willing to have lessee remain in possession, the lessor having suffered no inconvenience by not being able to render possession, so that lessor was not empowered by reason of such contract to cancel the leases.

6. Pas-ties <&wkey;19 — Ono of several colessm's, hiring lessor to harvest crop, may enforce contract without assignment from other colessees.

A lessee of rice lands, who with his colessees hired the lessor to harvest and take care of the crop, may sue in his name alone for damages for such lessor’s negligence in so doing, regardless of any assignment of their causes of action by such colessees; the contract being personal with lessee.

7. Landlord and tenant <&wkey;l 32(3) — Measure of damages for wrongful exclusion from leased rice lands stated.

In a lessee's action for his wrongful exclusion from leased rice lands, for the irrigation of which the lessor failed to furnish sufficient water, plaintiff could recover the profits which ordinarily, naturally, and in the usual course of proper cultivation the lands would have produced from growing a crop of rice during the time of such exclusion, to determine which the jury should ascertain what -would have been the probable production on such lands during such time, assuming they were properly prepared, planted, cared for, and harvested, and the value of the crop in the markets, deducting the cost and expense of cultivation, harvesting, and marketing, and the rent that would have been due under the lease, in view of Civ. Code Cal. § 3300, declaring the measure of damages for a breach of contract to be the amount which will compensate the party, aggrieved for all the detriment proximately caused thereby, which in the ordinary course of things would be likely to result therefrom; the rule that the proper measure of damages is the difference between the rent agreed to be paid and the actual rental value being applicable only where there has been a total failure to furnish water, and not where the lessee is excluded from the land.

8. Contraéis <&wkey;353(5) — -Xnstmedon on burden at proof as to understanding of contract, identity of which is in issue, hsld correct.

In an action by a lessee of rice lands for breach of the lessor’s contract to harvest, thresh, sack, and haul to destination the crop grown, where the testimony was conflicting as to whether a written contract, of which profert was made by defendant, was the one signed and executed by plaintiff, the court did not err in instructing the jury that the paper being produced by defendant, having been drawn in his office and its terms dictated by his attorney, the burden was on him to show that its contents and the meaning of its terms were fully made known to plaintiff, and that it was duly executed by him, hut that, if the document was in its present form when signed by the parties, it would be formally sufficient to constitute a contract, and the burden would be on plaintiff to show that his signature was induced by defendant’s misrepresentation.

9. Contracts <&wkey;349(7) — Evidence of cost of performing written contract Inadmissible.

In a lessee’s action for lessor’s breach of a contract to thresh the crop grown on the leased premises, evidence as to the cost of threshing it and of the equipment purchased with which to do so was properly denied as irrelevant; the issue being as to the extent of lessee’s liability for the services ■ performed by lessor under the written contract.

19. Witnesses <&wkey;275(6) — In action for exclusion front leased premises following sale, cross-examination as to other leases made subsequent to sale admissible.

In an action for wrongful exclusion, of a lessee from the leased premises following sale to a third party, where there was evidence that lessor might have leased portions of the land claimed to have been sold, subsequent to such sale, and taken jnortgages back from the lessees, the overruling of an objection to cross-examination of lessor as to what were the terms of such leases, to which he replied, “If there was a lease, it would be in the form of my regular lease,” was not erroneous.

11. Witnesses &wkey;>275(4) — Defendant testifying to irregular banking transaction might be asked as to his knowledge of similar transaction for a fraudulent purpose by another.

Where, in an action for wrongful expulsion of a lessee following sale by lessor, there was evidence that lessor had leased a portion of the lands after such sale, and the lessor, in explanation, testified' that, though a crop mortgage on the lands sold, which with a note, was given him for his accommodation, and to permit the execution of which he verbally turned over the crbp to the mortgagee, recited that he had given the latter a lease on the land, he had never executed such lease, and that he hypothecated the note to a bank, giving it his personal guaranty, he might be asked whether he did not know that that was a method used by an official of another bank of covering withdrawals and having them apparently secured by such methods for the purpose of deceiving the bank examiner.

12. Landlord and tenant *&wkey;48 (1) — Evidence as to availability of water for irrigation. purposes held sufficient for jury, in action for lessor’s failure to furnish quantity required by lease.

In, an action by the lessee of rice lands for the lessor’s failure to furnish sufficient water for irrigation, though the lease provided that the lessor did not assume any responsibility for furnishing any specified quantity of water, but only that water should be furnished in the quantity available from a certain irrigation canal, helé, that the court did not err in refusing a nonsuit.