This was an action brought to recover upon three promissory notes executed and delivered by the respondent to the Ramona Trading & Manufacturing Company and by that company indorsed to the appellant before maturity. The defense set up was want of consideration. On the trial, at the conclusion of all of the evidence, the court instructed a verdict for the appellant. Thereafter, on motion of the respondent,. a new trial was granted, and the present appeal is from the order granting a new trial.

It is our opinion that the court was in error in granting a new trial. The evidence on the part of the appellant supported its claim' that it was a holder of the notes in due course, and nothing contradictory thereof appears in the record.

Nor are we able to find that the respondent sustained his claim of want of consideration. The notes were given as the purchase price of three phonographs. The order for the phonographs was in writing and directed the seller to “Deliver to me (the respondent) ’,at your earliest convenience f.o.b. Los Angeles, or your distributing point, the articles mentioned” in the order. The respondent testified that one of the phonographs did not reach him, but his further evidence tended to show that it had been shipped and the bill of lading forwarded him. This being the fact, delivery was made when the articles were delivered to the carrier, and it is not a defense to the notes to show *299that a part of the property had been lost while in the hands of the carrier.

The respondent also offered testimony to the effect that it was orally agreed as a part of the order that the phonographs should be shipped so as to arrive in time for the Christmas trade, and that they were not so shipped. The court rejected the evidence, and it may be that it afterwards concluded that it was in error in so doing. But the evidence was rightly rejected for the reasons, first, that it tended to vary the written agreement, and second, because the offer was not accompanied by an offer to show that a loss was suffered thereby.

In whatever aspect, therefore, the case is viewed, no defense to the action is shown. The order granting a new trial is reversed, and the cause remanded with instructions to enter a judgment for the plaintiff in accordance with the prayer of its complaint.