The sole question presented by this appeal is this: Did the learned trial justice err to the substantial prejudice of the appellant, the plaintiff, by holding as he did in various ways that the fact that the bills of lading in evidence were dated October 28, 1916, instead of some day in the following November, for instance even on November first, was immaterial.
The justice submitted the case to the jury upon the narrow issue whether or not the defendants did offer the antimony to the plaintiff’s assignor in January, 1916, and he instructed them that if they found such tender established they should render a verdict for the defendants, but otherwise one for the plaintiff.
I conclude that in so holding the justice committed no such error; and I have reached that conclusion upon the following grounds, namely:
(a) There was no direct evidence that the company from which defendants obtained their antimony, and which was the consignee in said bills, did not have other shipments than those represented by those bills, and, therefore, no such evidence that the antimony tendered by defendants in January was of that October shipment.
*492(b) A shipment just prior to November, to wit, on October twenty-eighth, would satisfy the contract requirement for a November shipment. The distinction between that date and the date of November first, only three days later, is trivial upon its face, especially as there was no evidence of any facts — such as change of price or customary grading by months — making the three days earlier date of shipment of any material consequence.
(c) According to defendants’ version, which the jury must have accepted as true in order, under the charge, to find a verdict for defendants, the plaintiff’s assignor refused to accept the January tender upon the sole ground that he was unable to procure the consent of the British Consul, required by the “British government regulations ” specified in the contract. It is manifest that if the said assignor had then taken the objection that it did not appear that the- goods were of a November shipment the defendants might, for aught this record discloses, have readily obviated that objection by producing due proof that the goods were of such a shipment, or, even if they were not, by tendering other goods which were. It is elementary that under such circumstances the taking of an entirely different objection was a waiver of all others, or at least of any other which if then taken might have been obviated.
Moreover, there is no merit in plaintiff’s claim if in fact such tender was really made in January. Then the market price had advanced only one cent a pound over the contract price, which was thirteen and one-eighth cents per pound. Plaintiff’s assignor waited over two months and then, on March twenty-third when the market price had reached thirty-four cents a pound, an advance of 159 per cent, made his demand upon which this action is based.
Therefore, I dissent and vote to affirm the judgment and order appealed from, with costs.
Judgment and order reversed and new trial granted, costs to abide the event.