ON MOTION EOB BEHEABING-.
A full re-examination of this case has satisfied us that plaintiff’s motion for a rehearing should be denied. *274In the first place, we are called upon to examine the transcript in order that we may see that we misinterpreted, or misunderstood, or overlooked some of the principal evidence in the cause. In view of the great number of cases in the supreme court and in the courts of appeals, which have explicitly decided that cases on appeal will be determined from the abstracts as presented and not from the record, it is strange that we should now be asked to turn to the record. The request that we read the record is the more surprising, when we find from plaintiff’s original brief that the abstract as presented by defendants “set forth at length” the testimony “and is accepted by respondent as being complete and correct, with the exception of the letter written by respondent to its agent at Norborne.” This letter is then set out.
Prom the evidence thus set forth “complete and correct” we could come to but one conclusion as to the instructions. Plaintiff’s evidence establishes, beyond cavil, that it acted upon the sample presented. The agent inspected it without objection and passed upon its quality. His determination of its quality was not satisfactory to defendant Cleary. The agent testified, that “a short time after the contract was made James Cleary, one of the defendants, brought in a small sample of the wheat, probably a peck. I examined it and graded it number 3. He insisted that it was number 2, * * * I told him that I could not grade it anything but number 3.” The agent then went on to say that defendant informed him that, unless he would grade it as number 2, he, defendant, would not let him have any — that he would ship it himself. That he examined and graded the second sample, being a sample of the other lot of wheat, and graded that as number 3, also, and that to the grade of this sample defendant did not object, though insisting that the first *275lot was number 2. He then testified that he told Cleary “that unless he delivered the whole 6000 bushels as number 3, I wouldn’t take any of it.” So the other witnesses and employees of plaintiff testified as to the wheat being examined and graded and that the only difficulty was the disagreement as to the grade of .the first lot; one party insisting that unless he was to get it as number 3, he would not have it at all, and the other party insisting that unless it was taken as number 2, he would not let him have it. The case showed that defendants had the wheat and that the small lots examined and graded were samples of the wheat. No question was made of this. Nor was any question made, or suggested, by the evidence at the trial, as to defendants not having the right to require plaintiff to 'pass upon the wheat in advance of its ■delivery, or of plaintiff’s right to refuse to do so. Regardless of what they may have had a right to require, they did not require it. And yet the instructions are upon a theory of rights unclaimed and entirely inconsistent with the whole line of conduct which the agent adopted. The point is insisted upon, that the agent testified that there was no tender. His testimony throughout is exactly the contrary. It is true that he says, during the course of his testimony, that “Cleary never tendered or delivered any wheat except the two samplesbut it was these samples which he graded and passed upon and as the result of which, he informed defendant Cleary that he would not have it. If he would not take it, and so stated, it certainly would be a useless, as well as senseless, performance to produce the wheat in bulk at his place of business.
The motion is without any merit and is overruled.
All concur.