* The opinion of the court was delivered by
Wilson, J.It is claimed by the plaintiff that the mistake or misunderstanding of the parties, as to the meaning of the stipulation that the boards and plank should be square edged, gave either party the right to rescind the contract. This position, we think, is not sound. The question relates to the interpretation or construction of the contract merely. The meaning of the words square edged boards and plank is to be determined upon the evidence, and by the same rule as if the contract was in writing. There can be no doubt as .to the literal meaning of the language of the stipulation in question. . But if the words, square edged boards or plank, have acquired a customary meaning as applicable to the subject of this contract, it would be competent to show such acquired meaning of the language in order to give construction to the'contract according to the intention of the parties. The contract was within the statute of frauds at the time it was entered into, and for this reason it is void unless the defendant has *168since that time accepted and received part of the lumber by consent of the plaintiff, or upon the terms and within the meaning of their agreement. The plaintiff agreed to deliver the lumber to the defendant. The plaintiff’s teamster drew that portion of the lumber mentioned in the declaration and unloaded it on a common near the defendant’s house. In unloading it the defendant’s hired man assisted. While the lumber remained there, and before the defendant had used any portion of it, or agreed as to its measurement, the defendant discovered that a small quantity of the boards and plank were “ wany edged,” and sent word to the plaintiff that he should not accept any “ wany edged lumber.” To this the plaintiff replied by letter, stating to the defendant that he had no better lumber, and that not being satisfactory, had concluded to rescind the contract, and notified the defendant not to meddle with the lumber which he had drawn. The case states that the defendant received that notice the day on which it was written. The defendant then advised with counsel as to his rights, and subsequently informed the plaintiff he could hold the lumber which answered the contract, on the ground it had, as he claimed, been delivered and accepted. We think the facts detailed in the bill of exceptions do not show a delivery by the plaintiff, or acceptance by the defendant, of any portion of the lumber. The contract was entire. From its subject matter and terms, the parties must have understood that the plaintiff would draw the lumber to the defendant, that they would meet and look it over and determine whether the whole or part of it would answer the contract. When they had done all this, they would measure the lumber the defendant would accept, and the plaintiff would deliver it upon receiving payment of the contract price. Each piece or stick of the lumber drawn by -the plaintiff was marked by the sawyer with figures indicating the number of feet it contained as measured by him, for the purpose of charging for the sawing. But at the time the controversy arose as to whether all the lumber drawn was such as the contract called for, none of it had been measured for delivery to the defendant, and he had not agreed to take it at the sawyer’s measurement. At the time the defendant notified the plaintiff he should not accept the “ wany edged ” por*169tion of the lumber, he did not even notify the plaintiff that he would accept any part of it. It was not until after the plaintiff had rescinded or repudiated the contract, on the ground it was invalid under the statute of frauds, that the defendant claimed to hold any part of the lumber. The defendant had not paid for any part of it, and there is nothing in the case tending to show that either party had done anything under the contract sufficient to take it out of the statute. The property had not vested in the defendant; it belonged to the plaintiff, and the subsequent conversion of it by the defendant rendered him liable in trover.
The judgment of the county court is reversed, and judgment for the plaintiff to recover as damages the several sums which the court below found the different kinds of lumber were worth, with interest from and after the trial of the cause, in that court, and his costs.
It did not appear who argued this ease.