Mills

The plaintiff brought this action to recover damages from the defendant for failure to transport certain wheat from eastern Oregon to San Francisco. The complaint is in two counts—the first alleging that in July, 1885, the defendant made a contract in writing with the plaintiff, whereby it undertook and promised him to transport quickly and promptly from any point on its line east of the Cascade mountains to San Francisco all such quantities of wheat as he might thereafter deliver to it, and to deliver the same quickly and promptly to him at San Francisco; that in pursuance of said contract the plaintiff delivered to the defendant 8,326 tons of wheat to be transported to San Francisco, and that the defendant *358 willfully delayed the transportation of the wheat, so that it did not arrive at Sail Francisco until more than three months after it could have arrived there, and that by reason thereof the plaintiff was damaged in the sum of $35,000. The second count of the complaint sets forth the same contract, and alleges that in reliance thereon the plaintiff tendered to the defendant in Oregon for transportation to San Francisco 9,000 tons of wheat which the defendant refused to…