Todd

From a judgment entered in favor of plaintiff, for the purchase price of a stock of merchandise alleged to have been sold and delivered to defendants, they have appealed.

It appears that plaintiff was a merchant at La Mesa, California, where, in a storeroom owned by him, he carried a stock of goods necessary in conducting the business; that on November 1, 1919, he and defendants entered into a written agreement as follows:

On November 6th, five days after the execution of the contract and prior to the invoicing of the goods, the entire stock of merchandise was destroyed by fire.

The complaint alleges the making of the contract, which is admitted, and the delivery of the stock of merchandise referred to in said agreement to the defendants, the value thereof and a demand for payment made upon defendants, which was refused. In their answer defendants denied that the stock of merchandise had ever at any time been inventoried or invoiced as provided by the terms of the contract, or that any delivery thereof was ever made to them, or that the title thereto ever at any time passed from plaintiff to defendants.

The court found that on the date of the execution of the contract…