
    Mary A. Beck, as Administratrix, etc., Appellee, v. John Marriage, Appellant.
    
    No. 16,546.
    Appeal from Pratt district court.
    Opinion filed November 5, 1910.
    Affirmed.
    
      B. F. Milton, E. H. Madison, and L. A. Madison, for the appellant.
    
      L. M. Day, and William Barrett, for the appellee.
   Per Curiam:

The demurrer to the petition was properly sustained for the following reasons: The contract is plain and unambiguous, and in the course of nature came to naught. No new contract of sale was pleaded. The plaintiff could not insist on a waiver because she did not alter her situation or lose any rights on account of what the defendant said and did. The defendant’s conduct was not exhibited in any matter of performance, and so could not amount to a practical construction, even if the contract had been equivocal, which it was not.

The judgment is affirmed.  