Levis

Action for damages alleged to have been sustained by plaintiffs from violation of a contract of defendant to buy and pay for certain personal property. Findings and judgment went for plaintiffs. Defendant appeals from the judgment and order denying a new trial.

The record discloses that on August 27, 1901, defendant entered into a written contract to buy of plaintiffs five carloads of prunes of certain sizes designated, to be delivered in the first half of October, f. o. b. at Visalia, packed in sacks or boxes, to be paid for on receipt of bill of lading. Subsequently the time for delivery was extended during the month of October. Again, upon defendant’s request, time of delivery was extended to November 15th. During October one car was shipped to defendant and paid for. On November 1st defendant notified plaintiffs that the remaining cars would not be accepted, for the reason that the prunes were not up to the count, were improperly cured, and were cracked. This rejection was based upon an examination by a proposed buyer, who, in company with the defendant’s agent, visited plaintiffs’ warehouse the latter part of October and made an examination of certain prunes then in the bins…