Barsotti

This action involves a contract for the sale by the plaintiff to the defendant M. A. Caldaralla Company, a copartnership, of four carloads of grapes. The complaint originally contained three counts. In the first it is alleged that the defendant Imperatrice gave his personal cheek to the plaintiff in payment of the agreed price of the first carload, but that the check was “dishonored and the payment thereof refused.” In the second count it is alleged that the carload of grapes referred to in the first count and a second carload were delivered to the defendants, of the total agreed value of $1,849.77, only '$500 of which has been paid. In the third count it is alleged that upon the delivery of the two carloads of grapes mentioned, the defendants “breached and violated said contract in that they failed and refused to pay plaintiff for said grapes according to said contract or at all. That by reason of the breach and violation of said contract by the defendants as aforesaid, plaintiff, in order to minimize loss to himself, after due diligence, found a buyer for 43 tons of grapes, which was the amount thereof remaining undelivered to defendants and originally covered by said contract,…