Ellsworth

Appeal from judgment and order denying defendants’ motion for new trial.

Plaintiff recovered judgment for the sum of $912.50, as damages for failure of defendants to deliver certain apricots bought by plaintiff from defendants in 1905, and which they never delivered. Plaintiff was engaged in the business of drying, packing and dealing in fruits at Niles, in Alameda county, while defendants were engaged in a similar business at San Jose, in Santa Clara county. The contract, the breach of which gave rise to this action, is contained in two letters, one sent by plaintiff to defendants, and one in reply sent by defendants to plaintiff. They are as follows: “Niles, Cal., July 6th, 1905.—Knowles Bros., San Jose, Cal. Dear Sirs:— We herewith confirm purchase from you of one ear 1850-12% kilo boxes of choice apricots at 5% boxed, less 5%. Buyer to furnish lace paper with usual allowance for same; buyer also to furnish labels free. August shipment. Payment sight draft against papers. Respectfully yours, Edw. A. Ells-worth.” And: “San Jose, Cal., July 8th, 1905.—Mr. E. A. Ellsworth,. Niles, Cal.—Gentlemen:—Tour favor of the 6th inst. to hand, confirming purchase of 1850 12% kilo boxes…