In Error to the District Court of the United States for the Second Division of the Northern District of California; William C. Van Fleet, Judge.

Action by P. Pastene & Co., Incorporated, against the Greco Canning Company. Judgment for plaintiff (26S Fed. 168), and defendant brings error.

The contract for the alleged broach of which this action was brought is as follows:

“The Greco Canning Co., of San Jose, California, hereinafter called seller, this day sold, and P. Pastene & Co., Now York City, N. Y., hereinafter called buyer, this day bought, the following described goods—1916 pack:

(2.000) two thousand cases Salsa de Pomidoro packed 200 tins to the case

(2.000) ' “ “ “ “ “ “ 10O “ “ “ “

six oz. each, in wooden cases at three dollars and fifty cents ($3.50) per

u si a « fifor© « ** <( <* <( ** << “

hundred tins.

“Terms.—The above-named goods are f. o. b. cars San Francisco less 1% per cent, cash discount, sight draft hill of lading attached.

“Guaranty.—Buyers guarantee full acceptance unless this contract is otherwise changed by mutual consent of both seller and buyer. Seller guarantees that the goods covered by this contract are not adulterated, mislabeled, or misbranded within the meaning of the National Food and Drug Act June 30,1906 (Comp. St. §§ 8717-8728), or the California Pure Food Act March 11, 1907 (St. 1907, p. 208). Seller is relieved from any responsibility for misbranding when goods are not shipped under sellers label. Quality to he of sanie consistency as the imported, of good flavor and color. Samples for approval to be submitted prior to shipping and shipment to correspond with samples.

“Conditions.—Goods at risk of buyer from and after shipment, although shipped to seller’s order. In case of short pack, seller agrees to make prorate delivery only. If seller should be unable to perform all its obligations under this contract by reason of a strike, 'fire, or other circumstances, beyond its control, such obligations shall at once terminate and cease. Usual swell guarantee—viz.: Seller guarantees swells not to exceed one-half of 1 per cent.

“Shipment to be made as soon as practical after packing. All goods remaining unshipped to be hilled and paid for not later than November 1, 1916. Buyer agrees to protect draft against documents for invoice value on presentation. Seller agrees to store said goods and insure them at buyer’s expense, should buyer so desire, until December 1, 1916.

“Seller: Greco Canning Co.,

“By V. Y. Greco, Sec. & Treas.

“Buyer: P. Pastene & Co.,

“By Chas. A. Pastene, Pres.

“Sweet Basil or Basilico.

“One leaf of fresh basil to be put in each tin, either on top or bottom of contents.”

The plaintiff in error delivered to the buyer 665 cases of the 4,000 (subsequently reduced to 3.000) cases so contracted for, and set up in defense of the action that they were slightly more than the pro rata to which the buyer was entitled, and that a “short pack” and unavoidable trouble with the necessary machinery, which both parties to the contract knew the seller was to procure, prevented the plaintiff in error from delivering to the buyer any more than 665 cases.

A jury was waived by the respective parties, and while the court below, in deciding the case, made no specific findings of fact, it appears from its opinion that it held that the seller was justified in failing to deliver 20 per cent, of the cases contracted for by reason of a “short crop” in 1916, and, the parties having stipulated that -the market price of the product covered by the contract at the time and place of delivery was ?10 a case, gave the plaintiff judgment for .$5,205 (being at the rate of $3 a case for the deficiency), besides costs of suit.