When this action was here ón a former occasion, this court held that there was an implied warranty in the contract of June 21st, 1859, that the lumber was of a merchantable quality. Merriam v. Field, 24 Wis., 640. The testimony in the present bill of exceptions tends to show the same state of facts which was proved on the former trial, and upon which the court placed its decision. Such testimony tends to show that the lumber in question was in the water at Quincy, Ill., when the paper dated June 21st, 1859, was executed, and where it could not be inspected; and the circuit judge should have instructed the jury that, if those facts were proved to their satisfaction, the defendant was bound to deliver lumber which *598•was tlien merchantable at that place. The former decision of this court before mentioned, is res adjudiaata as to this proposition. The refusal of the learned judge to give such instruction is error. The instruction which was given, and which included as well the alleged deficiency in quantity as in the quality of the lumber, contains the vital qualification that the contract of June 21st, 1859, must have been an independent transaction, in order to entitle the plaintiff to recover for a deficiency either in the quantity or quality of the lumber, in the absence of fraud or mistake. All the other instructions to the jury were in harmony with, and made subject to this qualification.
It is perfectly apparent from the testimony, indeed, it is un-controverted, that the contract of June 21st, 1859, was not an independent transaction, but that there had been other transactions between the parties which constituted the consideration of that contract, and the instruction was equivalent to a direction to the jury to return a verdict for the defendant.
II. The memorandum or contract of June 21st, 1859, and the consideration paid thereon by the plaintiff, doubtless are a valid accord and satisfaction of the three executory agreements of 1857, mentioned in the answer. But it is something more. It is also a contract of sale and for the delivery of the lumber described in it. This seems too clear to require illustration or argument. We see no force, therefore, in the objection that the plaintiff has mistaken his cause or ground of action.
TTT. We cannot say that the contract of June 21st, 1859, is a contract for the sale and delivery of 750,000 feet of lumber absolutely; neither can we say that it is a contract for the sale and delivery of a specific lot of lumber estimated by the parties to contain that quantity. The contract in this respect is ambiguous, and the ambiguity is of such a character that it may be explained by other testimony. It is for the jury to decide, from a consideration of all facts and circumstances proved on the trial, what the parties intended by it. If they *599intended tbat tbe defendant was to deliver 750,000 feet absolutely, tbe plaintiff must recover damages for any shortage. If they intended that the plaintiff was only to have the defendant’s interest in the rafts lying there at Quincy — the quantity being only a matter of mere estimate, — the plaintiff cannot recover for shortage under his present complaint. In the latter case he could only recover for shortage caused by the fraud of the defendant or by mistake, and his complaint should show the grounds of his claim.
IY. There are many other objections urged to the rulings on the trial, but we apprehend that it is unnecessary to pass upon them specially, as the views herein expressed will doubtless be a sufficient guide to the circuit court, when the action shall be again tried.
By the Court. — The judgment of the circuit court is reversed, and a new trial ordered.