The question in this case is, what is the true construction of the contract which was made by the letters and telegrams of the parties. After some correspondence in regard to a proposed sale of cranberries by the plaintiff to the defendants’ agent, the plaintiff wrote to the agent a letter referring to *387that which had been said before, and containing this language: “ We can quote you to-day fancy berries such as you would want to ship to California 5.25 f. o. b. We do not wish to deal with any one with the idea of selling them fruit at higher prices than our neighbors, but wish to give them as low prices, and at the same time give them freshly picked and solidly packed fruit that will carry for future trade; we would be pleased to have your order and answer your inquiry at any time.” Three days later the plaintiff received in reply from the agent, a telegram in these words: “Am offered at five will you meet it.” The plaintiff answered as follows: “ Telegram received have entered order car fancy five dollars f. o. b. Wire shipping instructions.” On the same day the agent wrote, “ Your telegram is received and as I am not in a great hurry will write instead of wiring shipping instructions. [Then followed instructions for shipping to the defendants in San Francisco, California.] Don’t forget to ship fresh picked, solidly packed, fruit that will carry for future trade.” The plaintiff wrote and telegraphed from Wareham in this State and the agent from Gloucester. The defendants were fruit dealers in San Francisco.
The above quoted telegram of the defendants’ agent had reference to such berries as the plaintiff had offered in the letter written three days before, and the subsequent telegram, saying that the plaintiff had entered the order, concluded the contract. Although this last telegram contains no other word than “fancy” to show what property was to be delivered, it must be taken to mean such property as the plaintiff had offered, and the agent had referred to in his reply proposing a lower price, namely: “fancy berries such as you would want to ship to California.” His letter written the next day shows his understanding that the fruit was to be-freshly picked that would carry for future trade.
The evidence tended to show that “fancy berries” in the cranberry trade does not mean berries of a particular variety, or possessing any one unusual quality; but generally,berries of excellent quality. There was much testimony that fancy berries at one season of the year are different from fancy berries at another season, and all agreed that the term “ fancy ” refers to quality. There was evidence tending to show that there was risk of loss *388from decay in shipping berries from Wareham for market in San Francisco, and the jury might have found from the evidence that berries might be fancy berries, that is, berries of excellent quality, or even of the best quality known to the market, for immediate sale in the retail trade of Boston, which would not be fancy berries for shipment from Wareham to California, to be afterwards put upon the market there. Those which properly would be called fancy berries for one of these uses doubtless would have many qualities in common with those which would be called fancy berries for the other use; but there was evidence tending to show that some of the qualities which would • make them most valuable for immediate consumption, would tend to diminish their value for transportation a long distance, to be used in a future trade, and that.some of the qualities which would give them value for sale after a long interval, would diminish their value for immediate consumption. Whatever view the jury might have taken of the evidence bearing on this point, we think it plain that the parties in their contract had reference to the quality of enduring transportation as one of the qualities to be possessed by these fancy berries. Under the contract the plaintiff was bound to furnish berries having all the qualities that are common to different kinds of fancy berries sold in the market at that season of the year; that is to say, it was to furnish berries known to the market at that time as fancy berries. If there were no berries to be had at that season of the year that were fancy according to the meaning of the word in the cranberry trade, the plaintiff could not perform its contract. But if, as some of the evidence tended to show, slightly different qualities would be deemed important in buying' berries for shipment to a great distance, from those desired in berries for immediate consumption, that fact was proper for the consideration of the jury in determining whether these berries were within the contract.
We are of opinion that the instruction requested by the plaintiff was substantially correct, and that the judge erred in instructing the jury in these words: “ You cannot annex to that contract certain phraseology which the plaintiff claims should be annexed, ... to wit: 1 such as you would want to ship to California.’ ”
Exceptions sustained.