Harrison

The defendants had judgment in the court below, and from such judgment, and an order denying him a new trial, the plaintiff appeals.

The action is for a balance alleged to be due plaintiff on account of the sale of fifty tons of coal, sold under-the-name of Montana Lump Lehigh Hand-picked Coal.

The answer sets up, among other defenses, that the coal was sold by sample, and not by name, and that the coal delivered did not correspond with the sample.

The plaintiff proved that an agreement for the sale of the coal was reduced to writing and executed in duplicate, and that the one retained by him was lost. He then proved the contents of this written agreement by a witness who refreshed his memory from a letter-press copy of the written portion of said agreement, and a blank memorandum of contract similar to that upon which the agreement was written.

The contract as thus proven is as follows:—

The record does not disclose any conflict in the evidence as to the fact that there was a written agreement, or that its written terms were as above set forth. The defendants, however, were permitted to show by parol evidence that the contract was for coal of the same kind and quality as the…