
    Germer Stove Company, appellant, v. Haws Hardware & Furniture Company, appellee.
    Filed January 17, 1907.
    No. 14,634.
    Evidence examined, and held sufficient to sustain the jud~ment.
    Appeal from the district court for Kearney county: Ed L. Adams, Judge.
    
      Affirmed.
    
    
      G. L. Godfrey, for appellant.
    
      M. D. King, contra.
    
   Oldham, C.

This was an action by the plaintiff, Germer Stove Company, against the defendant, Haws Hardware & Furniture Company, for the remainder due on goods sold and delivered. The defendant answered with a counterclaim, for damages on a contract with the plaintiff for the purchase of a car-load of hard coal. The cause was originally instituted before a justice of the peace, where plaintiff had judgment for $10. On error taken to the district court by the plaintiff, this judgment was set aside, and on a -trial of the issues to the court and a jury plaintiff had a verdict and judgment for $7.59. To reverse this judgment plaintiff appeals to this court.

The only error assigned in the brief relates to the sufficiency of the evidence to sustain the judgment on defendant’s counterclaim. We have examined the testimony, and find that by correspondence between plaintiff’s agent and the managing officer of the defendant, plaintiff offered to sell and deliver a car-load of hard coal to defendant for a sum named in the offer, and that this offer was accepted in writing by the defendant. The plaintiff was unable to comply with its contract and deliver the coal, because of its inability to procure the coal or have the same delivered to defendant without the written consent of defendant’s coal dealer. Under these circumstances the quantum of defendant’s damage was a question of fact, which appears to have been properly submitted to the jury under evidence sufficient to support the amount found.

We therefore recommend that the judgment of the district court be affirmed;

Ames and Epperson, CO., concur.

By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is

Affirmed.  