. In Error to the District Court of the United States for the Northern Division of the Western District of Washington; Jeremiah Neterer, Judge.

•Action by the Stetson & Post Lumber Company against the Commercial Sash & Door Company. Judgment for plaintiff, and defendant brings error.

The defendant in error, Commercial Sash & Door Company, of Pittsburgh, Pa., brought this action against the Stetson & Post Lumber Company, of Seattle, Wash., to recover damages for an alleged breach of an alleged contract for the sale of certain lumber — the complaint alleging, in substance, that on or about October 29, 1919, the defendant to the action agreed to sell to the plaintiff at least eight mixed cars of lumber of specified kinds at a specified price for each kind, said offer to remain open at the prices stated until the succeeding March 1, limiting the offer only by specifying, “Moulding subject to our ability to get out at 40$ per inch per 100 ft.that the offer was immediately orally accepted by the plaintiff, through its agent, one Rabe, whereupon- the defendant to the action made and delivered to Rabe a written memorandum thereof, signed by its general manager, a copy of which is Exhibit A hereinafter inserted; that on November 5, 1919, the plaintiff confirmed its oral acceptance in writing, and in that instrument gave a detailed order for the first of the eight cars, which order is Exhibit B hereinafter inserted; that on or about November 25, 1919, and on December 3, 1919, the plaintiff in the action mailed to the defendant thereto similar orders for the second and third cars, none of which were filled, and on or about December 9, 1919, the said defendant by wire repudiated the contract, stating that it would not fill the same or any other such orders, and returned the said order with a letter of same date, claiming that it only 'offered to sell six and eight inch base. Thereupon the plaintiff in the action, while asserting its right to have mixed cars, asked the defendant to ship cars of casing and base, and later, on January 14, 1920, demanded a car of six and eight inch base, but that the defendant would not and did not ship to the plaintiff any lumber whatever.

Exhibits A and B are as follows:

Exhibit A.

“Order Date 10/29/19.

“Customer’s Order No.-. Route.

“Sold to Commercial Sash & Door Co., Address — Pittsburgh Pa. Stetson & Post Lumber Co., Owner. Deliver or ship to — Advise.

Price

5/8x8 B N Base, #2 and better mixed grain ........................... 47

5/8x6 B N Base “ “ 45

1 x5 B N Casg. (stool and apron 4/4 stock) ..........................45

1 x4 B N Casg. (5/4 stock, add 2.00) ................................ 45

1 x4 Crown Med. “ “ 45

1 x4 S 4 finish “ “ ...............'............. 43

1x6“ “ “ 44

1 x5-8 and 10 “ “ “ 47

1 x!2 “ “ “ 48

1-1/4 and l-l/2x4" & 6" S G D4S finish #2 and better mixed grain.....46

1-1/4 and l-2x5"-S", 10" and 12" SG D4 S finish #2 and better mixed grain ............*.................................................. 48

1-1/4 and l-l/2x8 to 12i" stepping B N V G #2 and better mixed grain .. 60

“For each inch over 12" in finish add 1.00 per M.. This is practical!y clear Highest grade Made.

“For mixed orders. Price to stand to March 1st, not to exceed 8 cars. All f. o.' b. mill prices. Kehrer.

“All kiln dried.

. “Mouldings subject to our ability to get out at 400 per inch per 100 S. Ft.”

Exhibit B.

“Commercial Sash & Door Co., 33d Street and Liberty Avenue,

“Pittsburgh, Pa. November 5, 1919.

“Order No. G-2804. O. K. Geo.

“Stetson & Post Lumber Co., Seattle, Wash.: Please ship the following goods via Penna. Railroad. Delivery to us at 33d St., Denny Siding, Pittsburgh Pa. Ship in January, 1920. This is first car applying on 8 car contract.

7,000 ft. lin. ¿/8x7-l/4 base our #28-1/2 count 1x8. at $47.00 per M. ft. B. M. 10.000 ft. lin. 5/8x5-l/2 base our #28-1/2 count 1x6 at $45.00 per M. ft. B. M. 36.000 ft. lin. 3/4x4-l/2 easing our #10 count 1x5 at $45.00 per M. ft. B. M. 15.000 ft.' lin. 3/4x3-l/2 casing our #10 count 1x4 at $45.00 per M. ft. B. M. 15.000 ft. lin. 3/4x3-3/4 Crown Mo. our #62 count 1x4 at $45.00 per M. ft. B. M.

“All above sizes are finished sizes. All #2 and better soft old growth yellow fir, kiln dried, which we understand is practically clear. Lengths of each item are to be an equal proportion of 10, 12, 14 and 16'.

“A very small proportion of 8/0 will be acceptable. We prefer not to have anything longer than 16/0, because our bins will not permit of longer lengths. Put 5 pcs., same length, size, and design, in each bundle. All bundles tied at each end with’ strong untarred rope.

“Are inclosing blueprints details of our mouldings. If our order shows sizes different than specified on our blueprint, be guided by the finish sizes specified in our order.

“All prices f. o. b. mill. Terms — 2 per cent, for cash upon unloading and checking goods. Acknowledge receipt of orders.

“Order number must appear on invoices.

“Commercial Sash & Door Co.,

“Per P. H. Schweizer.”

By its answer the defendant put in issue all of the allegations of the complaint. There was a verdict of the jury in favor of the plaintiff in the sum of $1,320, and a subsequent motion by the defendant for the entry of a judgment in its favor notwithstanding the verdict, on the ground that it was contrary to the evidence and contrary to law, which motion was denied by the court, and judgment rendered for the plaintiff.