The facts are stated in the opinion of the court. Chas. A. Lee, and Everts & Ewing, for Appellant. THE COURT.-This is an appeal from the judgment and order denying the defendant's motion for a new trial. The plaintiff, acting for himself and also for two other persons of whom he was the assignee, brought this action. against the defendant to recover the contract price of certain Zinfandel grapes alleged to have been sold and delivered to the defendant in September, 1913, pursuant to the terms of three contracts for the purchase of said grapes for that year entered into between the plaintiff and his assignors respectively and the defendant herein, by the terms of which the plaintiff and his assignors agreed to sell and deliver to the defendant first crop Zinfandel grapes, which were to be raised in the county of Fresno and shipped from Kerman, in said county, to said defendant in the city and county of San Francisco, which was designated as the place of delivery and acceptance of said produce. These contracts were made with the plaintiff and his assignors on behalf of the defendant by one Carl A. Heijne, who was the duly authorized agent of the defendant for the purpose of making said contracts. When the first carloads of said grapes arrived in San Francisco they were rejected by the defendant, which refused to receive them as first crop grapes, or to pay for them under said contracts, and refused to receive any more grapes of a like quality; whereupon the plaintiff and his assignors sold the remainder of their crop of grapes to other persons, and then brought this action for the price of the grapes shipped to the defendant as aforesaid. Upon the trial of the cause the court found that the carloads of grapes so shipped were first crop Zinfandel grapes of the quality required by the terms of said contracts; and also found that the defendant had accepted said grapes as such at Kerman at the time of their shipment from that point, and thereupon rendered judgment in favor of the plaintiff. From an order denying the defendant's motion for a new trial, it has prosecuted this appeal. The first contention of the appellant is that the court erred in the admission of evidence tending to show that Carl A. Heijne continued to act as the authorized agent of the defendant up to and including the time of the shipment of said grapes, and tending to show that prior to and at the time of said shipment said Heijne, purporting to act as the duly authorized agent of the defendant, had approved the quality of said grapes and accepted them as sufficient under the contract at the point of their shipment. It is the appellant's contention that this proof tended to vary the terms of the written contracts between the parties, which provided that the place of delivery and acceptance of said grapes should be the city and county of San Francisco. We are of the opinion, however, that such, would not be the effect of the introduction of such evidence, but that the proofs thus adduced would simply amount to evidence of a waiver on the part of the defendant of the provisions of its contracts with regard to the place of delivery and acceptance of the grapes. We are of the opinion that the defendant might, through its duly authorized officers or agents, have accepted and received said produce at Kerman instead of requiring that they be delivered at San Francisco, and that the place of acceptance should be there. The only question, therefore, presented on the record is as to whether said Carl A. Heijne was the duly authorized agent of the defendant for the purpose of acceptance of said produce at Kerman. Upon this subject the evidence is clearly conflicting, with the preponderance rather in favor of the view that Heijne acted as the agent of the defendant throughout the cropping season, and that his ostensible authority was such as would have entitled him to have bound the defendant by his approval and acceptance of the grapes at the place of their shipment. This being so, the finding of the court to the effect that the goods were delivered and accepted at Kerman will not be disturbed. The appellant further contends that the evidence in the case is insufficient to show that the grapes were first crop and of the quality required by the contracts in question; but as to that matter also the evidence is in conflict, and for that reason this further finding of the court will not be disturbed. The final contention of the defendant is that there was a conspiracy between Heijne and the plaintiff and his associates, by which unmarketable grapes were to be shipped to the defendant and the contract thus violated, so as to enable the plaintiff and his associates to evade it and sell the re mainder of their crop at a higher price upon a rising market. This defense does not appear to have been pleaded nor in fact presented upon the trial of the cause in the lower court; but aside from this, we do not think the evidence is sufficient to sustain the appellant's contention. The judgment and order are affirmed. A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 14, 1916. [Civ. No. 1579. Third Appellate District.-September 15, 1916.] WILLIAM GRANT, Respondent, v. CHARLES A. WARREN, Appellant. SALE OF BONDS-PAYMENT OUT OF PROCEEDS OF MARBLE QUARRY-FAILURE TO WORK QUARRY-MEASURE OF DAMAGES.-Where a sale of mortgage bonds of a corporation owning a marble quarry is made upon condition that the purchase price of such bonds, other than the amount paid upon their delivery, should be made by the vendee causing a corporation to be organized for the working of the quarry and having such corporation enter into an agreement with the vendor to pay to the latter such balance out of the proceeds of the quarry, and the vendee thereafter repudiates his agreement to work the mine, the measure of the plaintiff's damage is the full balance due in cash, and not the amount of the royalty that the quarry might have yielded had it been worked. APPEAL from a judgment of the Superior Court of Tuolumne County, and from an order denying a new trial. G. W. Nicol, Judge. The facts are stated in the opinion of the court. Thomas B. Dozier, and Reid & Dozier, for Appellant. Harding & Monroe, Grant & Zimdars, Beverly L. Hodghead, and W. H. Bryan, for Respondent. BURNETT, J.-The appeal is from the judgment and also the order denying a motion for a new trial. It is virtually conceded, however, by appellant that by reason of irregularities as to the statement on motion for a new trial we are, in effect, limited to the consideration of the appeal from the judgment and to the determination of whether the findings support said judgment. The findings necessary for an understanding of the situation are as follows: "That heretofore and on the 26th day of March, 1912, the plaintiff was the owner of five hundred and ninety-five per cent first mortgage bonds of the par value of five hundred dollars each, issued by the Columbia Marble Quarries, Inc., a corporation. That the payment of said bonds was secured by a first lien, mortgage or deed of trust made by said Columbia Marble Quarries, Inc., on that certain property situated in the county of Tuolumne, state of California, which property is more particularly described in the complaint on file herein. That said property included a certain marble quarry hereinafter referred to as the marble quarry property. That at the time of the issuance of said bonds and continuously up to and until the time of the sale thereof, as hereinafter found, the said Columbia Marble Quarries, Inc., was the owner of said marble quarry property subject to said bonded indebtedness. "That on or about the 26th day of March, 1912, this plaintiff sold and delivered to the defendant, Charles A. Warren, the said five hundred and ninety bonds upon the following express terms and conditions, that is to say: First: That the said defendant should immediately pay to plaintiff the sum of fifteen thousand dollars as a part of the purchase price of said bonds. "Second: That said defendant, upon receiving delivery and possession of said bonds should immediately proceed to sell, or cause to be sold, the property described in the deed of trust made to secure the payment of said bonds, in accordance with the powers conferred upon the holder or holders of said bonds by such deed of trust, and at the sale thereof should purchase said property and hold the same upon certain trusts for the use and benefit of this plaintiff; that is to say the said defendant agreed to cause a corporation to be organized for the acquiring, owning and operating of said marble quarry property and that he would cause and procure said corporation to enter into a proper written agreement with this plaintiff whereby it should pay plaintiff beginning eighteen months from the 26th day of March, 1912, the sum of fifty cents for each and every ton of marble taken out and shipped from said quarries until there should be paid to plaintiff the further sum of twenty-eight thousand dollars as the balance of the purchase price of said five hundred and ninety bonds. "That it was further agreed that such royalties should be paid on the 15th day of each and every month for all marble shipped during the previous month, and that all such royalty or royalties should be a first lien charge against said marble quarry property." Then follows a finding to the effect that Warren, on the delivery to him of said bonds, paid therefor the said sum of fifteen thousand dollars, and proceeded to sell said property under the terms of said trust and thereupon purchased the same; that he organized a corporation known as the Warren Marble Company; that he acquired control of its corporate stock and of said corporation and dominated its policy and business affairs; that said corporation, "at the behest and instigation of said Charles A. Warren and with full knowledge of the claims of this plaintiff against said property and in violation of such claims and without the knowledge or consent of this plaintiff, the said Warren Marble Company on or about the first day of July, 1912, made a certain mortgage or deed of trust, mortgaging and conveying said marble quarry property to the defendant, the Savings Union Bank and Trust Company, for the purpose of securing the payment of one hundred bonds of the denomination of one thousand dollars each." That said mortgage was duly acknowledged and was recorded on July 29, 1912; that after said mortgage was recorded, the said corporation made and delivered to plaintiff the agreement attached to the complaint and marked Exhibit "B," providing "that this contract and all moneys payable thereunder shall be a first lien and charge against the said marble quarry property and against the real property herein described"; that at the time of the delivery of said Exhibit "B" plaintiff believed it constituted a first lien and charge against said property; that he had no knowledge or notice of the creation of said bonded indebtedness of one hundred thousand dollars nor of the making or recording of said deed of trust, and that defendants Warren and the Warren Marble Company repeated to him that said |