Lund

This is an action for damages for the alleged breach of a contract to purchase personal property. The appeal is from the judgment in favor of the defendant and from the order denying a new trial.

The facts of the case as revealed by the pleadings and proof are substantially these: On November 30 and December 1, 1910, the defendant entered into two contracts with the plaintiffs for the purchase of certain specified quantities of claret quart bottles, to be shipped from Sweden during-the months of February or March, 1911. The contract price was $5.85 per gross, and delivery was to be made from the ship’s side at San Francisco. The bottles arrived at San Francisco on the steamship “Strathbeg” on June 15, 1911. They were tendered to the defendant on June 16, 1911, and refused by him. The bottles Avere thereupon removed to a warehouse by the plaintiffs, where they were stored and insured, and from time to time sold at private sale at varying prices for the aggregate sum of $2,912.85, which Avas $12.15 less than the sum total of the purchase price specified in both contracts.

The trial court in its findings of fact found that the plaintiffs did not use due or any diligence in making…