In this action judgment is sought for breach of contract. Plaintiff had judgment, and defendant appeals. Among other things, the court found:

“That on or about the 6th day of March, 1920, plaintiff and defendant entered into a contract, not in writing, wherein defendant agreed to sell the plaintiff and the plaintiff agreed to purchase from defendant four cars of alfalfa hay, at the agreed price of $27.00 per ton delivered f. o. b. Ogden, shipment to be made of two cars during the week following the date thereof, and two cars a week thereafter, to wit, on the 12th and 25th of March, 1920; that said defendant did deliver to plaintiff two cars of alfalfa hay so sold, but no other; that defendant notified plaintiff of its inability to deliver the other two cars of hay at the time agreed upon, and plaintiff and defendant mutually agreed upon postponement of the delivery of said hay tntil on or about the 23d day of April, 1920, at which time defendant refused to make delivery at Ogden, Weber county, state of Utah.”

The court further found that the plaintiff was ready and willing, at all times, to comply with the provisions of the *78contract and to pay the amount stipulated for tbe two carloads of bay not delivered. The court also found the amount of damages sustained by plaintiff. The defendant assails the findings of the court as not being supported by the evidence and the' judgment, as not being supported by the findings.

There is no dispute as to the making of the contract. Neither is there any dispute that two carloads of alfalfa hay were delivered, nor that two carloads were not delivered. Plaintiff’s testimony is that after the delivery of the two carloads of hay nothing further was said between the parties until about the 1st or 2d'of April following at which time plaintiff called the manager of the defendant over the telephone and requested delivery of the remaining two cars. He was informed by the president of the defendant 'company that the latter would deliver the hay just as soon as possible, and the plaintiff assented. At a subsequent date, a week or ten days later, plaintiff again called the defendant, and a similar conversation was had. There is some dispute as to whether there was any further conversation between the parties until April 23d. At that time plaintiff again called the defendant by telephone, and was then advised by the president of the defendant company that the hay would not be delivered. There was some conversation as to the delivery of one car, but plaintiff insisted upon the two cars being delivered, and assigned as a reason for so doing the fact that his firm had resold the hay and it was necessary to have the full amoufit specified in the contract.

It seems to be the contention of counsel for defendant, appellant here, that the conversations had between the parties after the date of the breach, to wit, March 25th, constituted a new contract, and the same being oral was. within 'the statute of frauds and not enforceable. Numerous authorities are cited by counsel tending to support the contention that a new contract entered into for the purpose of superseding an existing contract is subject to all of the requirements of an original contract; that is, there must be a consideration, and if the nature of the contract brings it *79witbin the statute of frauds it must be in writing. In answer to that argument it is sufficient to say that there is no evidence, on the part of either the plaintiff or defendant, that the parties contemplated entering into or making a new contract. Whatever negotiations were had after April 1st related to the former contract, and were efforts to have that contract fulfilled. There is some dispute as to what was said by the1 parties in these several conversations and a denial on the part of the defendant that such conversations were had. The court’s findings are supported by the plaintiff’s testimony, and those findings being upon disputed testimony are binding upon this court.

The measure of damages under the facts in this case is the difference between the contract price and the market price at the date of the breach. The testimony is to the effect that there was a gradual increase in the market value of alfalfa at Ogden front April 1st to April 23d. At the latter date the market value was $40 per ton. The controlling legal question to be determined under the findings made by the court is: Should the damages be determined as of March 25th or as of April 23d?

Conceding -that there was a breach on March 25th, neither party considered that the contract was terminated on that date. It was within the power of the plaintiff at that time to consider the contract broken and sue for damages as of that date. It was within the power of the defendant, either at that time or at any time prior to April 23 d to notify plaintiff of its inability to perform, and thereby fix the date on which the damages should be assessed. Neither party saw fit to consider the contract as terminated. The defendant by its contract and its promises, led the plaintiff to believe that it would fulfill the contract and deliver the hay under the agreement of March 6th. It would be most inequitable, under that state of facts, to deny the plaintiff any damages sustained by reason of the acts and conduct of the defendant in leading plaintiff to believe that the defendant’s contract would be fulfilled. To hold that the acts of the parties created a new contract would *80do violence to tbe fundamental rule of construction of all contracts that the intent of the parties shall control.

The facts in this case are similar to the facts in the case of Ralli v. Rockmore, (C. C.) 111 Fed. 874. In that case the defendant, in the months of October, November, and December, sold certain bales of cotton to plaintiff to be delivered during those months. Plaintiff urged delivery and not until January 4th following did the defendant definitely refuse to make delivery. In an action for breach of the contract, held that the damages should be assessed and determined as of January 4th.

The language of Blackburn, J., found in Ogle v. Vane (1867) L. R. 2 Q. B. 275, is appropriate here, and answers much of the contention made by counsel for appellant. That language is as follows:

“In the present case there were three contracts in writing, which may he treated as substantially one, that the five hundred tons of iron should be delivered by the end of July. None of it was delivered at that time; and the plaintiff, as he alleges at the request of the defendant, waited till February, when he lost all patience and went into the market, and1 brought this action; and the damages were assessed at the market price in February, which was much higher than at the end of July. The argument of the defendant’s counsel was that, inasmuch as the contract was broken at the end of July, the damages were fixed at the time of the breach, and nothing could alter the amount of damages, except something which would constitute a new contract, and that this new contract, not being in writing, would be void - under the statute of frauds. I do not think that is the proper view of the present case. There is no evidence to show that the plaintiff ever bound himself to wait for a later delivery, or that he ever made a fresh contract. The plaintiff, instead of insisting on his strict rights, consented to treat the defendant leniently, and said, ‘I’ll wait, but I do not bind myself to wait.’ líere there was no substitution of one contract for another. The inference which I think the jury might well draw as the result of the evidence is that the parties did no more than this: The plaintiff was willing to wait, at the request of the defendant, for the defendant’s convenience, and he did wait a long time, till February; but if he had lost patience sooner, and refused to wait any longer, he would have had a right to bring his action at once for the breach in July. It is clearly a case of voluntary waiting, and not of alteration in the contract.”

“The proposition that one party to a contract should thus dis*81charge himself from his own obligations by inducing the other party to give him time for their performance, is, to say the least, very startling, and if well founded will enable the defendants in this case to make use of the statute of frauds, not to prevent a fraud upon themselves, but to commit a fraud upon the plaintiff. It need hardly be said that there must be some very plain enactment or strong authority to force the court to countenance such a doctrine.” 10 L. R. Com. PI. Cases (1874-75) p. 603.

“It was in the power of the defendants, instead of merely postponing the execution of the contract from time to time, to have absolutely refused to perform it, if they found that the price of iron was rising in the market, as is alleged in argument.” Roberts v. Benjamin, 124 U. S. 73, 8 Sup. Ct. 396, 31 L. Ed. 334.

See, also, Brown v. Sharkey & Ross, 93 Iowa, 157, 61 N. W. 364; Bacon v. Cobb, 45 Ill. 47.

There are many other assignments of error relating to the- admission of certain testimony over defendant’s objections. The same are without merit.

We find no reversible error in the record. The judgment of the lower court is therefore affirmed, with costs.