ON REHEARING.
Stephens, J.The plaintiff has moved for a rehearing on the ground that this court overlooked certain evidence, as appears from the record, which,' the plaintiff insists, demands as a matter of law the verdict which was directed for the plaintiff. The evidence is a statement contained in the deposition of A. W. Knight, the credit manager of the plaintiff corporation. This testimony is as follows: “We received no communication from the defendant prior to shipment of merchandise.” There might be some merit in the plaintiff’s contention if this statement stood alone and unaffected by other portion of the testimony and inferences deducible therefrom. This statement in Mr. Knight’s testimony must be considered in connection with the context. Mr. Knight was credit manager of the plaintiff corporation. He testified as follows: “On morning of July 13, 1929, plaintiff received a letter from defendant dated July 10, 1929, canceling his order. We did not cancel the order. We received no further communications from him prior to maturity of the order, though *100we wrote him three times. The merchandise called for in the order was shipped to the defendant on the 12th day of July, 1929, via the Big Four and Southern Eailroad, freight prepaid. We received no communication from the defendant prior to shipment of merchandise.” Just before the witness made the statement which is relied on by the plaintiff in its motion for rehearing, that the plaintiff “received no communication from the defendant prior to shipment of merchandise,” the witness had testified that the communication from the defendant, which is relied on as a cancellation or a countermand of Ms order, was received by the plaintiff on the morning of July 13, and that the shipment had been made and the goods gone forward on July 12, which necessarily was the day before the receipt of the cancellation. The statement by the witness in Ms testimony that the plaintiff had received no communication from the defendant prior to the shipment of the merchandise, seems to be an inference of the witness drawn from the statement of facts made by Mm that the communication from the defendant was on July 13, and the shipment had been made on July 12, the day before. The testimony of the witness that the communication from the defendant was received on July 13, 1929, is in conflict with a statement contained in the deposition of another witness for the plaintiff, Mr. A. C. Fisher, the directing manager of the plaintiff corporation, which has already been referred to in the opinion of this court. This witness stated: “Examining the order and the stamp dated July 12, 1929, this letter from Mr. Lunsford [that is, the defendant] dated July 10, 1929, canceling the order was received by us July 12, 1929.” There was thus presented an issue of fact as to whether the cancellation contained in the defendant’s communication to the plaintiff was received by the plaintiff on July 13, as testified by Mr. Knight, or on July 12, as testified by Mr. Fisher. A jury could have adopted Mr. Fisher’s testimony that the communication canceling the order was received by the plaintiff on July 12. Since it appears elsewhere from the testimony that the plaintiff shipped the goods on July 12, the jury could have concluded from the evidence that the cancellation of the order from the defendant, and the shipment of the goods by the plaintiff, were on the same day, and therefore that the testimony of Mr. Knight, relied on by the plaintiff in the motion for rehearing, that the plaintiff received no com*101munication from the defendant prior to the shipment of the merchandise, was not correct. Since the jury could have inferred from the evidence that the cancellation of the order and the shipment of the goods both occurred upon the same day, and it does not appear affirmatively that the goods were shipped by the plaintiff before the receipt by the plaintiff of the order of withdrawal from the defendant, the plaintiff failed to ■ carry the burden resting upon it to show that the defendant’s offer had been accepted by the plaintiff by the shipment of the goods before the receipt by the plaintiff of the defendant’s communication withdrawing the offer. We are still of the opinion that the evidence did not demand a verdict for the plaintiff, and that the court erred in directing the verdict for the plantiff, and in afterwards overruling the motion for a new trial.
Judgment adhered to on rehearing.
Jenkins, P. J., and Sutton, J., concur.