considered on appeal in lieu of the bill of exceptions now provided for by law." The transcript so allowed and certified becomes a part of the judgment-roll only in the same sense that a bill of exceptions was made a part thereof by section 670, Code of Civil Procedure-that is, to serve as part of the record on appeal under section 950. (Since the amendment of section 670 in 1907 bills of exceptions are no longer made a part of the judgment-roll.)

There is no express authority for the appellant being relieved from printing his transcript on appeal in any case except one in which the transcript has been settled and allowed by the trial court in accordance with section 953a. This is true whether it consists of a judgment-roll only, or a record made up under the alternative method in lieu of a bill of exceptions; and, while the statute is open to the construction that the original of such a transcript, that is, the record prepared in accordance with sections 953a and 953b, may be sent up to the appellate court, it was clearly not intended to authorize the clerk of the trial court to send up his original files in the action, consisting of the pleadings, findings, judgment and other papers made a part of the judgment-roll by section 670. To do this would not only deprive the office of the papers and records which the law makes it the duty of the clerk of the superior court to preserve, but would render him unable to enter up the remittitur of this court sent down upon this proceeding. (Code Civ. Proc., sec. 958.) If the papers on file in this court be the original records of the superior court, the clerk of that court is granted leave to withdraw the same, and within twenty days from the date of filing of this decision is directed to file with the clerk of this court a duly certified copy of such records in lieu of the originals so withdrawn.

Judgment affirmed.

Allen, P. J., and Shaw, J., concurred.

[Civ. No. 631. Third Appellate District.-November 1, 1909.]

S. H. FRISBIE, Respondent, v. ROSENBERG BROS. & CO., a Corporation, Appellant.

CONTRACTS-BREACH-SALE OF CROP OF PEARS CURED TENDER AND REFUSAL RESALE IN MARKET-RECOVERY OF Loss.-Where defendant contracted to purchase the entire crop of pears grown on plaintiff's land after the pears were cured according to the contract, and after the same were so cured, the entire crop was tendered to the defendant corporation, which refused to receive any part thereof, the plaintiff had the right, within a reasonable time, to resell the same in the market at the place for acceptance at the highest price obtainable, and to recover the loss on such resale, besides loss of weight from shrinkage, as damages for the breach of the contract. ID.-SUFFICIENT RESALE-REASONABLE DILIGENCE-COMPLIANCE WITH STATUTE. A resale by the seller in the market at the place of delivery of the property thirteen days after the property was rejected by the defendant, for the highest market price then and there obtainable, was a sufficient compliance with section 3353 of the Civil Code, allowing to the seller in estimating damages "the price which he could have obtained therefor in the market nearest to the place where it should have been accepted by the buyer, and at such time after the breach of the contract as would have sufficed, with reasonable diligence, for the seller to effect a resale."

ID.-PROFIT OF PURCHASER IN DIFFERENT MARKET IMMATERIAL-IMPROPER CROSS-EXAMINATION.-Where the evidence clearly shows the property was resold at the proper time and place for the highest price obtainable, the profit made by the purchaser thereof by shipment to another place was immaterial; and questions asked of him on cross-examination as to where he sold them and what price he received were properly disallowed.

ID.-SUPPORT OF FINDINGS FOR PLAINTIFF.-Held, that the evidence without conflict supports the finding that the plaintiff tendered to the defendant the entire crop of pears cured which were grown on plaintiff's land; and that notwithstanding conflict in the evidence as to whether the pears inspected and rejected and resold in the market were up to the standard fixed by the contract, the finding in favor of the plaintiff on that issue was amply supported by sufficient evidence.

ID.-EXTENT OF SHRINKAGE RECOVERABLE-ALLOWANCE OUTSIDE ISSUES -DEDUCTION FROM JUDGMENT.-Where the entire crop purchased was estimated at fifteen tons, and the purchaser obligated himself to take no more than ten per cent in excess of that quantity, having a mere option as to the residue of the crop, and the only issue ten

dered as to shrinkage was on that portion of the crop which the purchaser was obligated to take, any shrinkage allowed by the court on the residue of the crop was outside of the issues, and such allowance may be deducted from the judgment without requiring a new trial.

APPEAL from a judgment of the Superior Court of Shasta County, and from an order denying a new trial. Charles M. Head, Judge.

The facts are stated in the opinion of the court.

A. H. Hewitt, and W. D. Tillotson, for Appellant.

T. W. Shanahan, for Respondent.

BURNETT, J.-The action is for damages for defendant's refusal to comply with its agreement to pay for certain dried fruit sold to it by plaintiff.

On September 4, 1906, the parties entered into a written contract providing that "Rosenberg Bros. & Co. have this day bought of S. H. Frisbie and said seller has this day sold to said buyer the entire crop of pears estimated at fifteen tons now growing and grown on the orchard situate-Andersonof which orchard is the owner and of which said crop seller declares that he is the owner and represents that he is duly authorized to sell the whole thereof.

"Prices and seller's estimate of quantity as follows, to wit: "About 15 tons Pears @ 8c per lb. . . .

"It is expressly understood and agreed that buyer is not obliged to accept fruit in excess of amount approximated above by more than ten per cent, but may do so at his own option.

"Seller hereby agrees to cure said entire crop properly and to have said entire crop ready for delivery and to deliver the same at Anderson.

"Seller hereby guarantees that all of the fruit herein above specified shall be choice, well cured, original condition, and free from damage.

"Buyer hereby agrees to pay for said fruit upon completion of delivery.

Plaintiff claims to have performed all of the conditions required of him by said contract and on October 10th to have.

notified defendant that he was ready and desired forthwith to deliver 33,000 pounds of cured pears under said contract. Defendant refused to accept any part of them, and plaintiff held them subject to defendant's order till October 25th. It is alleged "that at said time the said dried pears were losing weight through shrinkage and additional costs of insurance and keeping the same were necessarily being incurred." It is further alleged that plaintiff sold them on October 25th for six cents per pound, the highest market price obtainable, and that he was damaged by defendant's refusal to carry out its contract in the sum of $925. Plaintiff recovered judgment in the sum of $921.

In support of its appeal from the judgment and order deny. ing its motion for a new trial appellant mainly relies upon two grounds: "First, plaintiff did not cure and deliver or offer to deliver his entire crop of pears; and second, the pears that he did offer to deliver were not properly cured.”

We are not required, probably, to do more than to say that the findings of the court as to these material matters are amply supported by the evidence, but as appellant appears to be serious in these contentions, and that our declaration may be shown not to be arbitrary, some of the testimony upon each of these points is presented.

the boxes and
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They were all

1. The plaintiff testified: "Mr. Luyster went with me that day and examined all of those pears before we signed the contract. . . . On the trees in the orchard and the orchard which I had leased there was a little over a hundred tons I am sure, all of which I was the sole owner of. The one hundred and ten tons of pears on the trees, in windrows and on the ground were the pears and intended to convey under the contract. the pears I owned on that day. I didn't sell a pear of this lot green. I dried every one of them. The amount I secured from that lot-eighteen and one-half tons were what they turned out to be. When the pears were dried I took them to the Earl Fruit Company's packing shed. That is the lot of pears I notified Rosenberg Bros. & Company that I was ready to deliver and make a tender of; and is the same lot I afterward sold to the Sanitary Fruit Company." He is corroborated by Mr. Luyster, who testified that when he entered into the contract he had in mind the entire crop of pears

of Mr. Frisbie. The evidence, indeed, shows without any conflict, that the entire crop purchased was tendered by plaintiff.

2. While there is evidence to the contrary on the part of appellant, yet six witnesses testified for respondent that the pears were up to the standard fixed by the contract. The character of their testimony may be illustrated by the following statement of Earl Downing, an experienced fruitman: "The seventeen tons of cured fruit, the S. H. Frisbie fruit, in the Earl warehouse which was inspected between the twelfth and fifteenth days of October, 1906, I would call properly cured, well cured, choice, in original condition, free from damage, dried pears or cured pears."

There are a few additional considerations inviting brief attention.

As to the contention of appellant that there is no allegation of shrinkage, the portion of the complaint heretofore set out is a sufficient answer, if indeed such an allegation were necessary. Appellant must have forgotten that in its amended. answer this language is used: "And it denies that said dried pears were losing weight through shrinkage, or that they did lose weight by shrinkage."

As appellant, on October 12th, refused to accept the pears, it was the duty of respondent to dispose of them in accordance with section 3353 of the Civil Code, providing that "In estimating damages, the value of property to a seller thereof is deemed to be the price which he could have obtained therefor in the market nearest to the place at which it should have been accepted by the buyer, and at such time after the breach of the contract as would have sufficed, with reasonable diligence, for the seller to effect a resale." They were sold at Anderson, the place where they were to be delivered, thirteen days after appellant rejected them, and there is testimony of witnesses that they were sold for the highest price obtainable therefor. Respondent seems thus to have done all that the statute requires as to the disposition of the property.

Appellant complains because the court charged defendant with shrinkage on 36,264 pounds, whereas, under the contract, there was no obligation to accept more than 33,000 pounds. Respondent's answer to this contention is that he "resold the fruit all of which appellant had an option on for the best obtainable price at the nearest market. Appellant would 11 Cal. App. 41