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

Action at law by Cotton & Co., Incorporated, against the Ozmo Oil Refining Company and Petroleum Products Company. Judgment for plaintiff, and defendants bring error.

■The defendant in error brought an action against the plaintiff in error to recover damages for breach of contract. The parties will be named plaintiff and defendant as in the court below. The case was tried before the court without a jury.' The following is the substance of the court’s findings of fact:

That on October 14, 1918, the parties contracted in writing as follows: The defendant agreed to sell and deliver to the plaintiff at Buffalo, N. Y., 700 tons of paraffin wax, 50 tons to be shipped each month, beginning with November, 1918, and ending with December, 1919, for which the plaintiff was to pay 9% cents per pound in car lots, f. o. b. at San Francisco; that the plaintiff complied with the terms of the contract, but the defendant failed to .deliver any of said merchandise, and wholly failed to comply with the contract; that on or about September 30, 1918, and prior to the execution of said agreement, the plaintiff sold 600 tons of said wax to the Standard Oil Company of New York, the same to be delivered 50 tons monthly from January to December, 1919, at 10% cents per pound in car lots f. o. b. San Francisco, which sale was not consummated because the defendant did not deliver any of the wax mentioned in the original agreement; that the plaintiff prior to the execution and delivery of the agreement sold 100 tons of wax to Mitsui & Co., the same to be delivered 60 tons monthly in November and December, 1918, at 10% cents per 'pound in car lots Í. o. b. San Francisco, which sale was not consummated because the defendant did not deliver any of the wax mentioned in the contract; that prior to the execution and delivery of the contract the defendant well knew, and the plaintiff informed it, that plaintiff was about to purchase the wax mentioned in said agreement for resale, and had resold the same; that on September 17, .1918, the Ijlaintiff notified defendant by letter that it intended to offer the wax in question for sale. On September 80, 1918, it telegraphed the defendant that it had sold the wax to responsible parties, and on October 3, 1918, it wrote the defendant that the wax had been sold to responsible parties, and on October 8, 1918, plaintiff wrote defendant that it had sold the wax to the Standard Oil Company of Now York and to Mitsui & Oo.; that the total price to be paid by the plaintiff under the contract was $129,500; that the resale price of 600 tons to the Standard Oil Company was $121,500, and the resale price of 100 tons to Mitsui & Co. was $21,000, making a total resale price of $142,500; that the plaintiff has been damaged in the sum of $13,000, with Interest from May 31, 1919, the average due date of the payments which would have been made from the Standard Oil Company and Mitsui & Oo.