Lewin

An appeal by the defendant from a judgment entered in an action to recover the damage due to his refusal to accept and pay for certain coffee purchased by him. The appeal is presented on the judgment-roll. As grounds therefor it is contended that the title to the coffee passed to the defendant; that after his refusal to accept and pay the agreed price therefor the plaintiff, without complying with the provisions of section 3005 of the Civil Code, resold the coffee in the open market and was consequently entitled to no relief in the action.

The complaint, to which was annexed a written - contract executed by the parties, alleged that, pursuant to the terms thereof, the “plaintiff agreed to sell to defendant 500 bags of Columbian Coffee Aripe brand at the agreed price of 271/4^ per pound, ex dock San Francisco, net weight actual tare.” These allegations were admitted by the answer. The contract also contained the following provisions: “Quality: To be based upon Columbian Coffee—Aripe Brand—usual quality. . . . Payment: Cash less 2%. Full payment in exchange for delivery order on day after presentation of invoice with weight tags attached. Terms: Sale to be absolute and coffee is to…