Gunter

By the Court,

On the 15th day of October last, the defendants sold to the plaintiff a cargo of lumber on board the ship Almendralina, lying in the harbor of San Francisco, for the gross sum of $38,000, payable one half in cash, and the other half in good bills at 60 days. The lumber was, by the contract, to be delivered on shore, but no time was fixed for its delivery. Very soon after the purchase the plaintiff sold the whole cargo to Messrs. Palmer, Cooke & Go. Previous to the delivery, the plaintiff paid the full contract price, $19,000 in gold dust, at $15,50 per ounce, and $19,000 in bills at 60 days. The plaintiff claimed, at the time of the payment, that the defendants ought to receive the gold dust at $16 per ounce, but the defendants refused to take it for more than $15,50, and it was paid to them at that rate, and accepted by them under protest. The lumber was not all delivered until in the early part of December ; and this action was brought in the court of First Instance to recover damages for the delay in delivering it, and also to recover fifty cents on every ounce of gold dust paid, so as to make it equivalent to $16 per ounce, which was claimed to have been its…