The evidence indicated that all parties must have known defendant was in the habit of shipping the magazines out as they were received, which is hardly consistent with the position that, according to the intention of the parties, defendant was not obligated to pay for any unless it received all. Again, the four per cent margin for spoilage was insufficient to safely meet the probable loss in all three operations. A shortage might result in any month. It is not reasonable to suppose that, under the circumstances, it was contemplated that the plaintiff might lose its entire compensation if, on account of such narrow margin for spoilage and through no fault on its part, it failed to deliver the number of copies ordered. Furthermore, defendant allowed the theory of its position to remain obscured until near the end of the trial, with resulting confusion to court and counsel and with, apparently, undue advantage to itself. For these reasons and not because this might be regarded as a hard case in which to apply the law, I believe there should be a new trial.
I vote for reversal.