In Error to the District Court of the United States for the Northern Division of the Eastern District of Washington; Frank H. Rudkin, Judge. ■

Action by the McDonough Manufacturing Company against the M. A. Phelps Dumber Company. Judgment for plaintiff, and defendant brings error.

The parties will be designated plaintiff and defendant, as in the court below.

The action in the present case was brought by the plaintiff to recover on certain promissory notes executed by the defendant in payment for sawmill machinery and supplies furnished under a contract. The defendant answered, admitting the execution of the notes, and setting up as a defense to the action the failure of consideration thereof, in that the plaintiff failed to perform its contract within the time therein agreed. The same matter was alleged as a counterclaim for damages by the defendant. The answer alleged that on September 15, 1910, a preliminary written memorandum of contract was entered into between the parties, which contained, among other things, the following: (1) “Subject to strikes, accidents, or other delays beyond its control,” the plaintiff was to ship in good order, about April 1, 1911, certain described machinery, for which the defendant was to make settlement within 10 days after the date of shipment, and to give promissory notes for a certain proportion of the purchase price. (2) “That a retention of the property forwarded after SO days from date of shipment shall constitute a trial and acceptance, be a conclusive admission of the truth of all representations made by or for the consignor, and void all its contracts of warranty, express or implied.” (3) “The unloading of machinery when received shall constitute a waiver of any claim for damage from delay.” The answer further alleged that thereafter, and about November 4, 1910, the details and terms of the contract were agreed upon, one of which was that the contract should be performed within a reasonable time, at a date not later than March 15, 1911, “and that there should be included in the machinery furnished, should defendant desire, and delivered at the same time, but at an extra charge, one or two extra boilers, with all fittings and connections;” that said agreement was entirely oral, except as shown by said preliminary agreement; that thereafter, and on or about December 1. 1910, there was an oral agreement between the parties, by which the plaintiff was to furnish one extra boiler, together with connections, fittings, casings, etc., not later than March 15, 1911; that the machinery was not delivered until May 24, 1911; and that the defendant suffered damage by reason of such delay in the sum of $15,000. The reply denied that there was an oral contract made on or about November 4, 1910, or that there was an oral contract for supplying one or two extra boilers, with fittings and connections.

From the bill of exceptions it appears that the contract of September -15, 1910, was not made complete by an agreement upon the specifications until November 12, 1910, and that the machinery therein provided for was to be delivered on or about March 15, 1911. The specifications called for two Muskegon boilers, with steel settings, etc. The defendant subsequently desired to add one more boiler, with fittings. The defendant offered in evidence letters, one of December 5, 1910, from the plaintiff, suggesting that if any changes were to be made in the boiler proposition they should be made as early as possible; and there was further correspondence, until, on February 25, 1911, the defendant wrote to the plaintiff, asking it to give the boiler matter immediate attention. On April 6, 1911, the plaintiff wrote the defendant : “We are in receipt of advice from the Muskegon Boiler Works that the boilers are going forward.” Four days later it wrote: “We are right after the boiler people to rush out the balance with the least possible delay.” On the trial of the case the plaintiff was allowed to introduce evidence to explain its delay to failing to perform the contract “on or about March 15.” The court instructed the jury that such explanation might properly be considered by them. The evidence which was admitted consists of the following testimony of the president of the plaintiff: “A. Well, at the time this order was drawn up, it specified two boilers. After it was drawn up, Mr. Phelps asked us — said he that he would use — decided afterwards that he would use three boilers instead of two, and asked us to get a proposition from the Muskegon Boiler Works on three boilers instead of two, increasing it one-half. We immediately started to get this, and we got the boiler proposition after about 30 days from the Muskegon Boiler Works, and sent it to Mr. Phelps. He accepted it some time later, as shown in the correspondence. I don’t remember how much later. And the contract says also that the drawings were to be made subject to Mr. Phelps’ approval. They changed the boiler room entirely. It increased the size of it, and increased the bridging; it increased the steel casing, which was a special steel casing made around this boiler, and added another boiler to the equipment; and as soon as we got this boiler proposition we asked Mr. Phelps to check it over.”