Albretson

Heydenfeldt, J., concurred.

This cause was commenced in the Court below, upon a contract between Albretson and Hooker, by the terms of which, Albretson was *178 to transport one thousand cords of wood from the embarcadero at Sonoma, and deliver the same on the Government wharf at Benicia, using a scow belonging to Hooker for the purpose of transportation, which he was to re-deliver after the completion of his contract; and in consideration of the delivery of said wood, respondent was to receive three thousand dollars in different payments.

The cause was submitted to the Court below, and from the finding of the Court it appears that the respondent did transport from Sonoma eight hundred and eighty-four cords of wood, being all furnished by appellant fit for transportation, all of which was delivered at the place named in the contract, except a small portion carried elsewhere under the permission of appellant.

The Court below also finds that there had been paid by appellant under the contract, one thousand eight hundred and fifty dollars. The Court also finds that the respondent did not re-deliver the scow as required by the agreement, nor did he make an offer equivalent to a…