Morton

This appeal is from a judgment by the court sitting without a jury in favor of plaintiff and against defendant for the sum of $2,898. The complaint alleges that on September 16, 1920, at Brawley, California, the defendant corporation purchased from plaintiff 250 tons of milo maize at an agreed price of $50 per ton; that plaintiff delivered all of said maize in accordance with the contract and that defendant received and paid for 112 tons thereof, but after receiving the same refused to pay for and turned back to the plaintiff against his will and con sent 138 tons thereof and that defendant has not paid for the said 138 tons; that at the time of delivery when defendant refused to pay for the maize rejected the current market price thereof at Brawley was $29 per ton; that by reason of defendant’s failure to taire and pay for said milo maize the plaintiff was damaged in the sum of $2,898, no part of which has been paid.

The answer admits the purchase as stated in the complaint and sets out a true copy of the written contract, due execution of which is admitted. A portion only of said contract need be herein set out, as follows, to wit:

This contract was signed Albers Bros. Milling…