Steadman

Appeal from the judgment and from an order denying plaintiff’s motion for a new trial.

This is an action upon contract to recover the purchase price of certain dairy machinery sold by appellant to respondent under a written contract. Appellant claims that the goods described in the contract were shipped from San Fran cisco to respondent at Monterey on the steamship “Gypsy,” and were lost with that steamer in the bay of Monterey September 28, 1905. The contract provided, among other-stipulations, that the sale of the machinery set forth therein was f. o. b. San Francisco; that in case of the injury or destruction by fire or any other agency whatsoever of the property mentioned in the contract, the purchaser would sustain the full loss, and make full payment for the same in the same manner as he would have done if the goods had not been injured or destroyed. Appellant alleged that it delivered the goods to respondent on board boat at San Francisco, and that it had duly performed all the conditions on its part to be done and performed.

The respondent denied that he had ever entered into the contract set out in the complaint; or that the goods mentioned therein were ever delivered…