The opinion
HOUGH, Circuit Judge
(dissenting in part). With the opinion of the court as to the first cause of action I entirely agree.
In respect of the second cause of action, the complaint averred that plaintiff had found “a purchaser ready, willing, and able” to buy de-i fendant’s ship, which allegation was specifically denied. It was therefore incumbent on plaintiff affirmatively to prove the applicability to his purchaser of each one of the foregoing adjectives. This was never done. I do not think there was a refusal to accept plaintiff’s proposed purchaser on some ground other than his inability to perform, but if such was the case the contract as pleaded still required proof under all three heads, and the defense of inability was still open. The cases are collected in 4 R. C. L. 307 et seq.
I dissent as to the second cause of action.