Hammond

This is an appeal from a judgment in favor of defendant rendered and entered upon the verdict of a jury. The action was instituted by the plaintiffs to recover from the defendant the sum of $4,296.38 as the purchase price of a cargo of lumber claimed to have been sold and delivered by the plaintiffs to the defendant on or about the twenty-fifth day of May, 1914. The contract under which said lumber was sold was in the form of a written memorandum of such sale, specifying the amount, quality, price, and place of delivery of said lumber, which was to be shipped from San Francisco and delivered on the levee at San Mateo. The contract contained this clause: ‘1 San Francisco tally & inspection by Pacific Coast Lumber Surveyors to govern & be final.” The complaint was in the form of the common counts for goods, wares, and merchandise sold and delivered. The answer of the defendant, after denying the allegations of the complaint, set up the contract in writing between the parties and included the same in its answer in the form of an exhibit. The answer then proceeded to state that an alleged tally and inspection of the lumber attempted to be delivered to the defendant under the terms of…