The candy was sold under a written contract dated August 12, 1919. It contained these provisions:
"Important: Note conditions of sale.
"All orders placed with our representatives, are subject to the firm's acceptance. Owing to labor conditions and general scarcity of material all goods are sold at our price quotations prevailing on date of shipment and dependent upon our ability to fill. For the same reasons we cannot accept cancellation of all or part of any order, unless it reaches us 15 days prior to date of shipment. To overcome the usual accumulation of orders listed for specified future shipping dates, we reserve the right to fill and make shipment of any order 10 days prior to or after shipping date agreed upon.
"Terms. "2% for prompt cash in 10 days from date of invoice.
"Not 30 days net. Payable in New York Exchange.
"Goods will be forwarded under insured rates only, if so instructed by purchaser.
"All goods quoted f. o. b. New York.
"Jobbers' price list No. 24, July 15, 1919. * * *
"Cartons, 24 packages, 75c per carton, 24 cartons to a case."
Below was listed the candy ordered. The candy was shipped to defendant on September 10 and 13, 1919, and invoiced at $1 per carton, aggregating the amount sued for. Defendant remitted upon the basis of 75 cents per carton less 2 per cent. for cash. Appellant declined to accept the remittance as payment in full and returned same. The contract upon its face discloses that it was based on "jobbers' price list No. 24, July 15, 1919." Appellants' jobber's price list No. 25 was subsequently published effective August 25, 1919, and therein the candy ordered by appellee was priced at $1 per carton. The facts stated above are shown by the undisputed evidence.
As we view the contract, the price quoted therein of 75 cents per carton was little more than tentative to date of shipment. If appellants, prior to shipment, had reduced their price quotation upon the candy ordered, the appellee could not have been required to pay more than the reduced price quotations. On the other hand, if appellants, prior to date of shipment in good faith, increased their price quotations and such increase was warranted by labor conditions and scarcity of material, then appellee under the express terms of the contract was bound to pay the increased price. As we view the evidence, there is nothing to impeach the bona fides of the increase in price made subsequent to the date of the contract, nor any evidence contradicting the testimony of appellants' witnesses that the constantly increasing trend in labor and material cost rendered it necessary to promulgate the increased price list of their candies, and that subsequent to August 25th they sold all of their candies upon the basis of the prices quoted in list No. 25. The testimony of appellants' witnesses to this effect being clear, plain, unambiguous, and uncontradicted, the peremptory instruction requested by appellants should have been given.