(concurring):
I concur with Mr. Justice Houghton, and I am'also of the opinion that if there'was a breach of the contract by the defendant the measure of damages was the market price on the twenty-third day of January or the fifteenth of February. It was, therefore,' error to refuse the testimony offered by the defendant as to the market value of the hops in January and February. On January twenty-third the defendant expressly demanded the delivery of' the hops, which were then due under the original contract, and. stated that the refusal to submit samples and prices at that time would be taken as a refusal on the plaintiffs’ part to comply with the modified contract. This position was restated by the letter of February fifth, and the fifteenth of February was then fixed as the definite date for "a breach of the contract on the part of one party or the other. The position of both parties had then been stated, the plaintiffs claiming that their rights were to be determined by the original contract of December 5, 1904, while the defendant claimed that the modified contract should control. ■ If the jury should sustain the plaintiffs’ contention, there was certainly evidence to base a finding that there had been a breach of the contract on the 15th of February, 1,905.
Judgment and order reversed, new trial ordered, costs to appellant to-abide event.