I concur with Justice Houghton’s opinion as to the reversal of the judgment here in reference to the carload which the defendant refused to accept because an inspection was not permitted. I do not agree with him as to the other four cars. The defendant’s agent went to the plaintiff, a dealer in apples in an apple country, late in the apple season, and desired to buy apples of the plaintiff. He stated the price, which was satisfactory to the plaintiff, and stated the defendant would take as many apples as the plaintiff could load and ship. At the suggestion of the plaintiff, this number was limited to fifteen or twenty carloads, whereupon the plaintiff proceeded to load and ship several carloads, which were paid for, and these five carloads which are in dispute, but did not get to' the minimum number of fifteen.
*28I think it was fairly a question for the jury whether there was not a completed contract, and whether the minds of the parties did not meet upon the offer made by the defendant’s agent, and whether there was not an acceptance on the part of the plaintiff as to the proposition and an agreement to furnish fifteen or twenty carloads of apples, so far as was disclosed by the conversation had and the acts of the plaintiff and defendant directly thereafter; or the question could have been submitted to the jury as to whether the plaintiff did not agree to get as many carloads, limited -by fifteen or twenty, as he could procure in that vicinity at that time of year and ship to the defendant. In either event, if the jury found for plaintiff, I think the plaintiff would be entitled to recover such damages as he might be able to show from' the refusal of the defendant to receive the apples sent him.
Where there is any doubt about the terms of a contract, the question becomes a mixed question of law and fact. (Trustees of East Hampton v. Vail, 151 N. Y. 463.)
I think the judgment should be reversed in its entirety and a new trial had.'
Judgment and order reversed and .new trial granted, with costs to appellant to abide event.