Corse

Plaintiff brought Ms action in two counts, seeking damages alleged to have been sustained by Mm from defendant’s breach of contract. Plaintiff recovered on the first count and judgment was for defendant on count number two.

Defendant appeals from the judgment in favor of plaintiff on count one and plaintiff makes no appeal from that part of the judgment adverse to him. Therefore, throughout we will deal exclusively with the cause of action involved in this appeal, namely, count number one.

The complaint alleges that in December, 1924, plaintiff and defendant entered into a contract whereby defendant agreed to sell to plaintiff and plaintiff agreed to buy from defendant one hundred tons broken white glass bottles at nineteen dollars per ton, cost and freight delivered at Hongkong; that prior to the delivery of said merchandise plaintiff paid to defendant the sum of nineteen hundred dollars, and in addition thereto paid freight and insurance to Hongkong from San Francisco; that defendant delivered to plaintiff certain broken glass bottles of an inferior quality in that the same were a mixture of white bottle glass, as distinguished from broken white glass bottles, and white glass…