(after stating the facts.) The correspondence shows that appellant notified appellees promptly on receipt of the first carload of lumber that it did not comply with the contract as to age of lumber. Also, as the other cars were received, and after the last car was received, appellant notified appellees that it was “unable to find a car in the whole lot that came within the terms of the contract,” and that it “would not receive it until it was all sixty days old.” In answer to this letter appellees claimed that the lumber was according to contract except “a small amount.” Before the expiration of sixty days appellant wrote appellees letter of February 1, 1905, calling the attention of appellees to the fact that it was a “very tough lot of lumber” and ■“a good deal of it worthless,” and that “all of it that was rejected on account of mill culls” would be carefully stacked, so that appellees might have it inspected. This letter stated: “If we throw out any'that can be used in manufacture, or that would not be graded as a mill cull, we shall be pleased to receive it as lumber.” In answer to this, appellees, after again conceding that ten or twelve thousand feet of the first shipments did not comply with the contract .as .to age and after declaring again that the balance of the lumber shipped was from sixty days to six months old, continued as follows: “Now, what we want you to do is to make settlement on- this as per invoice, unless you have some lumber that is worthless to you. Let us hear from you along this line with settlement,” etc. Isbell, appellee’s manager, when questioned in regard to this statement, replied: “That is right; we don’t want anybody to pay for anything that is worthless. If it had been properly inspected when it first arrived, it would have graded up to contract.” Concerning the ten or twelve thousand feet that did not comply with the contract as to age, Isbell said appellees had no objection to appellant’s rejection of it if it was not wanted. If appellant had thrown this out and made settlement for the other, it would have been satisfactory to appellees.
i. In view of the above and other evidence set forth in the statement of facts, the court erred in declaring appellant liable for all the lumber shipped if it accepted a material part thereof. This declaration was doubtless grounded upon the idea that the contract was entire, and that appellant, by accepting a part of the lumber, in law accepted all. But this proposition ignored all the evidence which tended to show that the lumber which appellant did accept was after notification to the appellees, and upon the understanding with them that it might accept the portion which conformed to the contract, without making itself liable for that which was not according to the contract, or that which was "worthless” to appellants. The court erred in declaring in effect that under the evidence this was to be treated as an entire contract, when there was evidence from which the jury might have found that the parties to it regarded and treated it as severable. Ordinarily, the contract under consideration would be construed as an entire contract. But, "even if the contract would not ordinarily be deemed severable, the parties may by. their conduct so treat it as to show that they regarded it as sever-able, in fact.” 2 Mechem on Sales, § 1398. The intention of the parties to the contract is paramount; and, even where the contract according to its language is entire in form, its entirety may be broken by the concurrent acts of both parties. 3 Page, Cont, § 1484; Russell v. Lilienthal, 36 Oregon, 105. If the contract was entire, and the parties to it by acts done under it did not elect to treat it as divisible in fact, then the acceptance of a material part of the lumber would be an acceptance of the whole. We are of the opinion that it was a question for the-jury under the evidence to determine whether or not the acceptance of a material portion of the lumber was the acceptance of the whole, so as to render appellant liable for the whole in a sum measured by the contract price.
2. The contract under consideration was an executory contract for the sale of lumber of specified age and grades. What were the duties and rights of the appellant under it? It was the duty of appellant to make proper inspection of the lumber within a reasonable time after same was received. In the absence of contract stipulations, the rules and customs peculiar to the trade in such cases, if shown, would furnish the proper measure of appellant’s duty in the premises. If the contract was entire as to the quantity of lumber designated, it would be the duty of appellant, if all the lumber was according to the contract, to accept and pay for same. But, if the whole or a material portion was not according to the contract, if the contract was entire, appellants should have rejected all or none, and promptly notified appellees of the result of the inspection and the action taken. If the contract was severable as to the quantity of lumber, appellant should have accepted such portion of the lumber as was according to the contract, rejecting any that did not conform thereto. If the appellant failed to make seasonable inspection of the lumber received and to report the result thereof to appellees, it would be deemed in laiw to have accepted same. The contract specifications as to age and grades of lumber were ■not merely warranties, but conditions precedent, which gave appellant these rights: (1) if the lumber was not according to contract in .these-respects, to reject the same, or (2), to accept same and bring cross action for breach of warranty, when sued for the purchase price, or (3), without bringing cross action for breach of warranty, to use the breach by way of reduction or recoupment in the action by„the vendor for the price. Plant v. Condit, 22 Ark. 454; Weed v. Dyer, 53 Ark. 153; Pope v. Allis, 115 U. S. 363; Morse v. Moore, 13 L. R. A. 224.
The requests of appellant for instructions, however, embodied the idea that, in case the jury should find that appellant accepted all the lumber, in that event appellant would have to pay for all the lumber shipped. It is apparent, therefore, that appellant is not in an attitude to complain, because the court did not present the theory that, in case of an acceptance of all the lumber, if there was a breach of warranty or failure to comply with conditions precedent in the contract, on the part of appellees, appellant might recover in a cross action, or by way of recoupment when sued by appellees for the price of the lumber. If appellant desired the benefit of this theory which it has so ably presented here, it should have asked it in the trial court.
3. In the matter of a particular custom or usage of trade, .“all that is required is to show that it is established; that is, that it has existed a sufficient length of time to have become generally known.” 12. Cyc. 1034, cases cited in note. There was nothing in the record to show how long the alleged custotfl had been in vogue. The proof was hardly sufficient to establish a usage among lumber dealers as to the inspection of lumber. The evidence, however, could not have been prejudicial, since the court charged the jury that appellant was required to inspect the lumber within a reasonable time, leaving the jury to say what was a reasonable time under the evidence. The court left the matter of inspection to be determined by the law without reference to the custom, as if no custom had been established. This was correct.
For the error indicated the judgment is reversed, and the cause is remanded for new trial.