Withers

Action on contract for the purchase of coal to arrive at San Francisco from Newcastle, New South Wales. Plaintiff had judgment, from which, and from the order denying his motion for a new trial, defendant appeals.

It is alleged in the complaint that defendant agreed in writing with plaintiff about October 12, 1893, to purchase from plaintiff two cargoes of coal at 24s. 3d. per ton, delivered alongside wharf at Oakland or San Francisco, the first to be shipped from Newcastle, New South Wales, between March 1 and May 31, 1894, and the second August 1, 1894, and October 31, 1894, “in vessels to be chartered under the usual form of charter-party of the defendant”; that on September 15, 1894, a cargo was delivered to and accepted by defendant as and for the first of said two cargoes, on account of the purchase price of which defendant paid a part, leaving still due and unpaid $1,657.75; that about October 31, 1894, plaintiff shipped a cargo by vessel named “Poltalloch” for the second of said cargoes; that said ship had theretofore been chartered by plaintiff for said voyage, under a charter-party of said form, and that plaintiff fully complied with said contract of October 12, 1893;…