ON SUGGESTION OF DIMINUTION OF THE RECORD AND PETITION 'for REHEARING.
RICE, J.Upon filing the preceding opinion in this case, appellant suggested a diminution of the record in order to show that a proper undertaking on appeal had been filed with the clerk below, and asked for a rehearing. Upon the record being supplied it was found that this court had jurisdiction of the appeal. We have, therefore, considered the *640questions raised by the record upon the argument heretofore had.
On the first day of December, 1914, the respondent and Lot L. Feltham, appellant, entered into a written contract, the material portions of which are as follows:
“That the first party in consideration of the payment to it of the sum of $5,019.30 by second party, in payments as hereinafter specified, does hereby agree to sell and does hereby sell to said second party, its certain stock of packed apples now stored at the Cold Storage plant in Weiser, Idaho, of varieties and quality as follows, to-wit: . . . . making a total of 3441 boxes of extra fancy apples and 2403 boxes of fancy apples.
“That any and all of said apples shall be loaded free on ■board of cars at Weiser, Idaho, by first party, upon the order of second party as'to kinds and quality in each car, and shall be shipped on or before the 15th day of January, 1915, and at least six cars of said apples shall be shipped on or before January 1st, 1915, on order of second party.
“It is agreed that as a guarantee of good faith that he will take and pay for all of the said apples herein described at the prices herein quoted, he will deposit in the First National Bank of Weiser, Idaho, the sum of one thousand dollars, which money shall remain in said bank till the payment of the entire stock of apples herein described, and said one thousand dollars shall constitute a guaranty of the full performance of this contract including the payment of the purchase price of said apples as herein stated. In case all of said apples are received and paid for in said times as agreed herein, the said sum of one thousand dollars shall be released to second party. In case second party shall fail to take and pay for any of said goods said sum of one thousand dollars shall be forfeited to first party as liquidated damages. This deposit as security shall in no way be considered as a payment upon the purchase price of any of said apples and all shipments of apples shall be paid for within the times herein stated.
*641“It is agreed that all payments made under this agreement shall be made through the said First National Bank, and second party shall be credited for said payments upon this contract as received from second party.
“It is agreed that credit for three cars of said apples shall be extended to second party and he shall have the same shipped to his order, but in no case shall credit for more than three cars of said apples be extended to second party at one time. It is also agreed that said apples are considered to be delivered and accepted by second party at the time same is delivered upon the cars and loaded at Weiser, Idaho, and the bill of lading turned over to the First National Bank,
Respondent set out two causes of action in his complaint: First, for the sum of $1,000 forfeited as liquidated damages by appellant for failure to perform his written contract; second, for $801.40, balance of the purchase price of "a portion of the apples shipped to appellant in accordance with the terms of the contract. Appellant defended on the ground that the apples were not of the quality and grades specified in the contract, and also set up affirmative defenses claiming damages for breach of the warranty as to the quality of the apples. It appears that two cars of apples were shipped to appellant by respondent shortly after the execution of the contract, and that thereafter, on January 31, 1915, appellant refused to receive the remainder and declined to fulfil the contract. The case was tried to a jury, and verdict was returned for the full amount prayed for by respondent.
The following special interrogatory was submitted to the jury:
“On the first day of December, 1914, the date of the contract of sale between plaintiff Weiser Fruit Association and defendant Feltham, were the apples described in the said contract of the kinds and grades marked on the various boxes ?
“Answer: Tes.”
Judgment was entered on the verdict, and Feltham appeals therefrom.
*642Appellant assigns as error the action of the court in striking certain matter from his affirmative defenses. The matter stricken is somewhat voluminous, and we will not quote it here. Suffice to say that it consisted mainly of a recital of the negotiations between the parties prior to the execution of the contract, and explanations as to the terms thereof. Certain allegations with reference to prospective profits which would have accrued to appellant had the apples been as warranted were also stricken by the court. The action of the court was proper. All prior negotiations were merged in the written contract. This contract speaks for itself, and is not ambiguous. In any event, in view of the special finding of the jury, the action of the court in granting the motion to strike was without prejudice.
Appellant made no contention in the court below, nor in this court, that the portion of the contract providing for the deposit of $1,00.0 in the First National Bank of Weiser should be construed as providing for a penalty instead of liquidated damages. In construing provisions of this character the general rule is that the intention of the parties, as to whether the agreement is for a penalty or for liquidated damages must prevail. (13 Cyc. 90; 8 R. C. L. 560.) In this ease liquidated damages might have been contracted for, and from the action of the parties it appears to be conceded that the $1,000 should be considered as liquidated damages and not as a penalty. This court will not, therefore, of its own motion, hold that the first count of the complaint does not state a cause of action.
Appellant complains of an instruction given by the court to the effect that if, on the date of the contract, the apples so sold by respondent were of the kinds and qualities specified therein, and as marked on the boxes, respondent would be entitled to the specified contract price, and that it made no difference whether .any or all of the apples subsequently deteriorated. On examination of the entire contract it is clear that respondent only warranted the quality and grade of the apples on the date of sale. The language of the contract is that respondent “does hereby agree to sell and does *643hereby sell to said second party its certain stock of packed apples .... of varieties and quality as follows.” The jury having found that the apples conformed to the warranty on that date, all of the defenses on the part of appellant and all his counterclaims for damages fail, and many of the errors alleged become immaterial. (Nelson v. Sumida, 19 Cal. App. 171, 124 Pac. 1053; Baldwin v. Fisher, 110 Minn. 186, 124 N. W. 1094.)
The only additional specifications of error which could be material are those as to the action of the court in excluding or admitting evidence relative to the character of the apples on the date of sale. We have examined these specifications in detail, and are of the opinion that the court did not commit error in its rulings on the admission and rejection of testimony.
Respondent was permitted to introduce testimony to the effect that the day before the execution of the contract, appellant examined the apples described therein and expressed himself as satisfied with their condition. This testimony was properly admitted as tending to prove an admission on the part of appellant. (2 Wigmore on Evidence, sec. 1048.)
We find no error in the record. The judgment is affirmed. Costs awarded to respondent.
Budge, C. J., and Morgan, J., concur.