(dissenting). The complaint alleges that the defendants did not take and pay for certain articles which, hy the terms of the contract, they had agreed to take and pay for. This allegation is admitted by the answer, and the fact so admitted was as much a fact in the case as if it had been found upon issue joined. The defense is that the plaintiff first violated the contract by not having the goods mentioned in the order ready for spring shipment; and this involves a construction of the written contract. It will hardly be questioned that the contract required the defendants to send a vessel or vessels for the goods, within a reasonable time after the arrival of the time when they could be shipped in the spring, and to give the plaintiff reasonable notice of the time when such vessel would be at the dock in Guilford to receive delivery; and that the plaintiff did not violate the contract so long as he was ready to meet and did meet the obligation to so “ deliver over the rail of a vessel.”
It seems to me that the finding shows with sufficient clearness that the trial court did not so construe the contract, but did construe it as requiring the plaintiff to have all the goods on the dock during the months of March, April and May, and to notify the defendants that they were so ready for delivery, although the defendants neglected to give the plaintiff notice when they would send a vessel to receive the goods; that this error in law induced the finding, essential to the judgment, that the plaintiff had violated the contract, and induced the exclusion of sundry relevant evidence; and that this error is assigned in the appeal. There was, therefore, a mistrial, and a new trial should be granted.