Nelligan

The complaint alleges: That plaintiffs are partners under the firm name and style of Nelligan Son, doing business in the city of Santa Rosa, and that defendant is a resident of the county of Stanislaus; that on or about the eleventh day of September, 1916, a written contract was entered into between the parties hereto by which plaintiffs agreed to purchase from defendant and defendant agreed to sell to plaintiffs four thousand five hundred sacks of No. 1 White Egyptian corn for the sum of $32.50 per ton; that, in accordance with said contract, defendant has delivered to plaintiffs 2,250 sacks and that 2,250 sacks remain undelivered; that on or about February 19, 1917, plaintiffs demanded the delivery of said corn, but that defendant has failed and refused to deliver the same; that on said date "and within such period thereafter as would have sufficed for the plaintiffs to purchase the same quantity of Egyptian corn of like quality and kind as specified in said contract, the plaintiffs would have been compelled to pay in the market where delivery of said Egyptian corn was to have been made according to the terms of said contract, to wit, on board cars at Turlock, Stanislaus County,…

The complaint alleges: That plaintiffs are partners under the firm name and style of Nelligan & Son, doing business in" the city of Santa Rosa, and that defendant is a resident of the county of Stanislaus; that on or about the eleventh day of September, 1916, a written contract was entered into between the parties hereto by which plaintiffs agreed to purchase from defendant and defendant agreed to sell to plaintiffs four thousand five hundred sacks of No. 1 White Egyptian corn for the sum of $32.50 per ton; that, in accordance with said contract, defendant has delivered to plaintiffs 2,250 sacks and that 2,250 sacks remain undelivered; that on or about February 19, 1917, plaintiffs demanded the delivery of said corn, but that defendant has failed and refused to deliver the same; that on said date ‘ ‘ and within such period thereafter as would have sufficed for the plaintiffs to purchase thé same quantity of Egyptian corn of like quality and kind as specified in said contract, the plaintiffs would have been compelled to pay in the market where delivery of said Egyptian corn was to have been made according to the terms of said contract, to wit, on board cars at Turlock, Stanislaus…

In his petition for a rehearing, appellant, among other points therein made, declares that, in reaching our conclusion as announced in the original opinion, we considered the testimony of Nelligan as to the price at which corn could be sold in Santa Rosa. In reply, we take occasion to say that we based our decision solely upon the proposition that the record contained sufficient evidence to support the verdict in all vital particulars growing out of the issues made and tried, and that, although we referred in our opinion to the testimony relative to the price at which corn could be sold in Santa Rosa, we attached no significance thereto so far as the verdict was concerned. That testimony ’was by the court taken from the jury in an instruction in which they were told in explicit terms not to regard or consider it in reaching their verdict, and the presumption is that they obeyed the instruction and disregarded the testimony.

As to the remaining grounds upon which a rehearing is asked, we are satisfied with our original opinion, and a rehearing is, therefore, denied.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied…