Philip Wolf Co. v. King Starrett

Action to recover damages for the breach of an alleged contract for the sale of hops by defendants to plaintiffs. The court found that no contract was entered into between the parties, as alleged in the complaint, or at all, and defendants had judgment. Plaintiffs appeal from the judgment and from the order denying their motion for a new trial.

The judgment of this court entered on September 30, 1905, was vacated and set aside for the reasons that, upon suggestion of diminution of the record made before submission of the cause, but not called to the attention of the court when the opinion was being written, the notice of intention to move-for a new trial was shown to have been duly served, the motion for a new trial duly heard and denied by the court, and that the appeal was taken within sixty days after judgment was rendered. It therefore becomes unnecessary to consider the points made by respondent based upon the nonappearance of the foregoing facts.

The sole question in the case is, as suggested by appellants, in their reply brief (now before this court, but which was not in the record when cause was submitted on the August calendar of this court, although claimed by…