Meyer

This is an appeal from a judgment in favor of plaintiffs and from an order denying defendant’s motion for a new trial.

Plaintiffs sold defendant a cargo of cement, at the agreed price of $2.90 per barrel,.payable on delivery, which was completed November 18, 1907. The amount payable under the contract, which was in writing, on that date, was $70,064.07. Upon account of the condition of the money market, defendant was unable to make payment in money, but did arrange with plaintiffs to procure for them a New York draft for fifty thousand dollars. Plaintiffs took the draft and discounted the same at a loss of two hundred and fifty dollars, and credited defendant with the net proceeds of such draft $49,750, and at once so notified defendant. There is a sharp conflict in the testimony as to whether or not plaintiffs had agreed to accept such o draft on account at its face or at its discount value. But it is certain that thereafter a controversy existed between plaintiffs and defendant as to who should bear the loss of the discount. The evidence shows that plaintiffs made frequent demands upon defendant to pay the balance unpaid. Upon February 3, 1908, defendant sent to plaintiffs a…