months of June, July, 1915. Up to June 30, 1915, defendants, in pursuance of the contract, had delivered to plaintiffs two thousand bags. About the middle of July, 1915, plaintiffs demanded of the defendants delivery of the remaining twentyeight thousand bags, but defendants requested that they be allowed to deliver the remaining bags within a reasonable time after the month of July, 1915, and plaintiffs, upon the representation of defendants that the postponement would be of advantage to the defendants, orally consented to the proposed postponement. Thereafter, and up to January 22, 1916, the defendants continued to deliver bags to the plaintiffs. On that date defendants refused to deliver any more bags. The value of the 11,069 bags which remained undelivered to plaintiffs on January 22, 1916, was $1,300.62, and as the contract price was $747.17, the court awarded damages in the sum of $553.45.

In support of the first point defendants contend that the amended complaint is defective because it does not contain an allegation that plaintiffs tendered the price of the bags. While it is true that the complaint is not free from uncertainty as to whether or not a demand was made for delivery during the months of June and July, 1915, which was the time provided for delivery by the original contract, nevertheless we think it is fairly inferable from the allegations of the complaint as a whole that such demand was made, accompanied by a statement in effect that the plaintiffs were ready, able, and willing to accept delivery of the bags and pay therefor.

It is also fairly inferable from the allegations of the complaint that while the plaintiffs and the defendants were both doing business in the town of Antioch, in Contra Costa County, the bags, which were the subject matter of the contract, were in the warehouse in San Francisco. Hence it is apparent that the bags were not present at the time of the demand to be delivered to the plaintiffs, and therefore it was unnecessary that actual payment or offer thereof accompany the demand for delivery, for "If the goods are not present to be delivered to the buyer, the buyer may accompany his demand with an offer to pay when actual delivery is made to him." (Pearson v. McKinney, 160 Cal. 649, 660, [117 Pac. 919].)

Even if it cannot be said that the complaint does, in effect. allege a demand for delivery at the times when delivery was due under the original contract, still other allegations of the

complaint, even though they were intended to be the foundation for a cause of action, in part, for the failure to deliver pursuant to the parol agreement to extend the time of delivery, nevertheless suffice, in our opinion, when read and considered with the allegations of the complaint as a whole, to constitute a demand for delivery subsequent to the time when delivery was due under the original contract. The complaint further avers that in response to that particular demand the defendants notified plaintiffs that they would make no other or further delivery under the terms of the original contract. That being so, then pursuant to the provisions of sections 1439 and 1440 of the Civil Code the plaintiffs' cause of action accrued without the necessity of previous performance or offering to perform the condition of payment on their part.

If either construction of the complaint concerning the demand be correct, then, in the absence of a special demurrer, it must be held that the complaint stated a cause of action upon the original contract.

The trial court made a finding to the effect that the time of performance of the original contract was extended by an unexecuted oral agreement. Defendants contend that under this finding the trial court should have declared as a conclusion of law that the oral extension of the contract was invalid. The plaintiffs, on the other hand, argue in support of the finding and conclusion of law that inasmuch as they entered into the oral agreement at the request and for the convenience of the defendants, that defendants are estopped from asserting that they are not bound by the oral agreement, and the case of Seymour v. Oelrichs, 156 Cal. 782, [134 Am. St. Rep. 154, 106 Pac. 88], is relied upon to support this contention.

That case affirms the right of courts of equity to hold a person estopped to assert the statute of frauds where such assertion would amount to practicing a fraud, stating that the operation of this equitable doctrine is not limited to any particular class of contracts included within the statutes of frauds, provided, always, the essential elements of an estoppel are present, and that to constitute an estoppel by acts or conduct, the presence of fraud on the part of the person estopped is

necessary.

In the present case the complaint contains no allegation of fraud on the part of defendants nor any averment from which fraud might be inferred, nor did the court find fraud. "The

rule which prohibits the modification of a written contract by parol is a rule, not of evidence, but of substantive law. By that law the solemn obligations of parties evidenced by their writings may not be modified or set aside for fraud unless the rules of this substantive law in pleading the fraud are duly complied with." (Harding v. Robinson, 175 Cal. 534, [166 Pac. 808].) To extend the equitable doctrine expounded in Seymour v. Oelrichs to cover a case of this kind, where there is no fraud and the only injury consists in the breach of the contract, would be, in effect, to do away with section 1698 of the Civil Code.

However, that section does not prevent a plaintiff from suing on the original written contract. The rule that neither a plaintiff nor a defendant can at law avail himself of a parol agreement to vary or enlarge the time for performing a contract previously entered into in writing and required so to be by the statute of frauds serves "rather to preclude the defendant from setting up an agreement to enlarge the time for delivery in answer to the plaintiff's demand than to prevent the plaintiff from suing on the original contract for a breach of it." (Hickman v. Haynes, L. R. 10 C. P. 598; Williston on Sales, secs. 123, 124.)

While the finding that the extension of time within which to perform rested in parol should have compelled the conclusion of law that such extension was invalid because in contravention of the provisions of section 1698 of the Civil Code, nevertheless the plaintiffs' complaint pleads and the cause of action proceeds primarily upon the original written contract and a breach thereof by the defendant resulting in damage to the plaintiff. This finding is not assailed, as, indeed, it cannot be in the absence of a record showing the evidence adduced upon the trial of the case. This finding in itself is sufficient to support the judgment, and the judgment is therefore affirmed.

Kerrigan, J., and Richards, J., concurred.

[Civ. No. 1925. Second Appellate District.-November 7, 1917.]

GERTIE STEWART, Respondent, v. WILLEDD ANDREWS, Appellant.

APPEAL ALTERNATIVE METHOD-RECORD NOT PRINTED IN BRIEF-ArFIRMANCE OF APPEAL.-An order granting a motion to set aside a judgment and granting permission to file an amended complaint must be affirmed on appeal, where there is no record other than a typewritten transcript prepared in accordance with section 953a of the Code of Civil Procedure, and the brief of appellant contains none of the evidence and no part of the record as required by section 953c of such code.

APPEAL from an order of the Superior Court of Los Angeles County granting a motion to set aside a judgment and permitting the filing of an amended complaint. Leslie R. Hewitt, Judge.

The facts are stated in the opinion of the court.

Willedd Andrews, in pro. per.

C. W. Hatton, and J. W. Barnes, for Respondent.

THE COURT.-This is said to be an appeal from an order granting plaintiff's motion to set aside the judgment and granting permission to plaintiff to file an amended complaint. There is no record other than a typewritten transcript, which we may assume was prepared in accordance with section 953a of the Code of Civil Procedure. Appellant has not complied with section 953c of the Cole of Civil Procedure, which provides that upon such a record the parties must "print in their briefs, or in a supplement appended thereto, such portions of the record as they desire to call to the attention of the court." The brief for appellant is absolutely deficient in that it contains none of the evidence and contains no part of the record. On the authority of Jones v. American Potash Co., ante, p. 128, [169 Pac. 397], and cases there cited, the order is affirmed.

[Civ. No. 1960. Second Appellate District.-November 8, 1917.] BESSIE C. RAYHILL, Respondent, v. SOUTHERN PACIFIC COMPANY (a Corporation), et al., Appellants.

NEGLIGENCE-LOSS OF AUTOMOBILE-COLLISION WITH RAILROAD TRAIN AT CROSSING-EVIDENCE-CONTRIBUTORY NEGLIGENCE.-In an action for damages for the loss of plaintiff's automobile, which was struck by a train of the defendant, the plaintiff, as a matter of law, is guilty of such contributory negligence as to prevent recovery, where it is shown that she approached a dangerous railroad crossing where the conditions were such as to prevent persons from seeing an approaching train before it had arrived in close proximity to the junction with the highway, that she was driving an automobile in which was a moving engine which made some noise, and that she at no time took the precaution to stop and listen until it was too late to avoid the injury.

APPEAL from a judgment of the Superior Court of San Bernardino County, and from an order denying a new trial. J. W. Curtis, Judge.

The facts are stated in the opinion of the court.

Henry T. Gage, and W. I. Gilbert, for Appellants.

George L. Greer, Daley & Byrne, and John W. Summerfield, for Respondent.

JAMES, J.-Defendant appealed from a judgment awarding damages to the plaintiff on account of the loss of an automobile which was struck by a train of the defendant. Appeal is also taken from an order denying defendant's motion for a new trial. The evidence is presented by bill of exceptions, and it is claimed that the proof was insufficient to justify the verdict of the jury and that the court should have granted the motion of defendant for judgment of nonsuit. The questions so presented depend for solution upon the proposition as to whether upon the evidence introduced on behalf of the plaintiff or upon the whole evidence, it should be concluded that the plaintiff was guilty of contributory negligence. In our opinion, the case presented is one where the plaintiff, measuring her acts by all of the testimony favorable to her case, failed to use