Cox

Appeal from the judgment in an action to recover damages arising from breach of contract.

The contract was in writing, dated February 3, 1919. By its terms it purported to be a contract between F. B. Cox and H. Rosenberg. It was stated therein “that for and in consideration of the sum of $1,850 and 1150 tons of salt f. o. b. cars Saltus, California, to be delivered to the said F. B. Cox f. o. b. Saltus in quantities not less than two hundred tons per month beginning in the month of March, 1919, the whole 1150 tons to be delivered in six months; the said F. B. Cox does hereby sell one F. C. Austin, type D. Dragline Excavator complete as per description hereto attached, . . . said machine to be delivered to the said H. Rosenberg f. o. b. cars at Saltus, California.” Claiming that the individual defendants were co-partners in the salt business at Saltus, the plaintiff brought this action against them and against the alleged partnership, and alleged that his contract of February 3, 1919, was made with them. In the complaint it is alleged that pursuant to said contract the plaintiff delivered the excavavator to the defendants, who accepted and used the same in their business.…