The correspondence between the parties in this action is so volu-t minous that it is impossible-tq set it forth in-an opinion. Whati. *631ever contract was made was probably entire and a failure to deliver part would be a failure to perform the contract if it had not _been waived by the defendants. In their correspondence, however, in reference to the matter, defendants made no objection on the ground that the gallons were not in fact delivered, but their objections went to other matters entirely so that they cannot now be heard to say that the reason they did not take the tomatoes was that only a part delivery had been made' of the entire contract. The defendants further claim that there was no agreement to buy except through sample and that as no order had been made and no contract consummated after the sending-of any samples that there was no agreement upon which the defendants can be held liable. After the letter, however, of September fourteenth, which stated what the plaintiff had for sale, upon September fifteenth the. defendants apparently gave their full order without asking for a sample. Upon that order we think that the plaintiff was authorized' to make a purchase provided the goods were strictly top quality as stated in his letter of September fourteenth. It appears afterwards that this carload was sent upon September twenty-ninth by freight. Upon October .first the plaintiff also sent samples of the carload by express. Mr. Leighton, one of the defendants, ,swore that he had entire charge of the transaction with the plaintiff and dictated all the letters. He also swore' that he received samples, although he thought they came after the car was there. He did not remember that he examined the samples and that he had nothing whatever to do with the samples. As the samples were sent by express only two days after the goods were shipped by freight, if the defendants had in good faith desired to insist upon their right first to examine the samples they might have done so. Their failure, however, to examine the samples, as is apparent from the testimony of Mr. Leighton, one of the defendants, indicates that, that was not insisted upon as a material condition of the purchase.
If we assume then by the letter of September fifteenth authority to purchase for the defendants, the authority was-to purchase tomatoes which were strictly top in quality. In the sales memoranda sent with the letter of the seventeenth the three-pound cases were palled full standard while the gallon cases were called standard, *632In the letter, however, accompanying'' that they were spoken of as strictly top quality. Referring back, however, to the letter of the plaintiff' of September fourteenth he makes a, distinction . between ■ the'standard tomatoes and strictly top, full pack nice ripe tomatoes. One is quoted at seventy-five epnts and the other at seventy-seven and one-half cents. There is a diversity of evidence as to the meaning of the term strictly top tomatoes in the trade, and if as we construe the contract the plaintiff Was bound to furnish .strictly top tomatoes it should have be¿n left to the jury to say whether the tomatoes which were sent were strictly top fom.atoe& But the learned trial judge, after lie- had charged the jury that they were required to furnish strictly top tomatoes^ upon the suggestion of plaintiff’s counsel, varied his charge arid charged that the contract calls for full standard tomatoes and that they .were bound to take ■the evidence of the plaintiff as to what full. standard tomatoes meant. To-that charge.an exception was duly taken. That exception was,.Vve think, well taken. At no time do we find any agreément on the part of the defendants to take any toma!oes except strictly top tomatoes. What this term meant in the; trade and' whether the tomatoes furnished were of that quality were the' two - questions to submit to the jury and-for a failure of the trial judge to submit those questions to.-the jury the. Trial Term properlyx directed a new trial. • ' . , ,
The order should be affirmed, with costs. -
All concurred, Cochrane, J., in memorandum; Sewell, J., not sitting. . .