The following portion of the opinion delivered by Chipman, P. J., in the district court of appeal, is by this court adopted:

A hearing was here granted to consider the question of the sufficiency of the evidence to sustain the award of the jury; the argument being that the evidence established that the price of coal at the ship’s side was at least seventy-five cents per ton less than the price, of coal in the bunkers or yards, to the ship-side price being added seventy-five cents as the *539 estimated cost of hauling to the yards; that, cast into figures, this would result in the following:

and from these figures, it is argued, the conclusion is irresistible that the jury’s verdict of three thousand dollars is excessive. With this contention, however, we cannot agree. It is true that Mr. Moore, testifying on behalf of the plaintiff, declares that in the practice of his company there is made a deduction of from seventy-five cents to a dollar per ton between the price of coal when taken at the ship’s side and that taken from their yards or bunkers. He testifies, however, that he does not know whether that practice obtains with other coal concerns, and he does affirmatively declare that two companies, the Western Fuel Company, and the Pacific Coast Company, control and fix the market price of coal. The testimony is uncontradicted that the price of coal fixed by these companies was twelve dollars per ton. It is further shown that defendant could not secure the coal from the plaintiff. This being the situation, he was clearly entitled to buy the coal at the market price in the nearest market (Civ. Code, sec. 3354; Bullard v. Stone, 67 Cal. 477 , [ 8 Pac. 17 ]). Such being the unquestioned law and right of defendant, the price at ship’s side imports an irrelevant factor into the consideration. There was no ship’s side. Defendant could not procure the coal from plaintiff’s ship. He was justified, therefore, in buying in the open market, and his measure of damage is the difference between the contract price and the open market price. The evidence abundantly establishes that this difference was four dollars per ton, or six thousand dollar’s. Deducting from this, plaintiff’s admitted claim of $2,401.12, and it leaves as the amount of defendant’s damage a sum greater than that awarded by the jury.

*540 The judgment and order appealed from are, therefore, affirmed.

Melvin, J., Angellotti, J., Shaw, J., Lorigan, J., and Sloss, ■ J., concurred.

Rehearing denied.