dissenting:
I find myself unable to concur in the holdings of the majority opinion in the following particulars:
1. I do not think that the paragraph appearing on the printed form used by the defendant, below its signature *179to the contract, is a part of the contract. It seems to me that the principle involved in Rosenbaum Hardware Co. v. Paxton Lumber Co., 124 Va. 346, 97 S. E. 784, is applicable, and that the holding there is controlling here to the effect that such paragraph is not a part of the contract. And,
2. It seems to me that, even if the paragraph in question be held to be a part of the contract, its meaning is that it had reference only to contingencies not within “our”—i. e., the defendant’s—control, and stated that the happening of contingencies beyond defendant’s control would not affect the contract; and that it must be lived up to in accordance with its terms, unless abrogated by mutual consent of both parties thereto in writing. As is seen from a reading of it, the language of the paragraph is peculiar and if it was intended to convey some other meaning it is not so phrased as to do so. That, certainly, the paragraph had no reference to delivery at Savannah being dependent upon the contingency of the ability or inability of the defendant to obtain cargo space in shipping vessels at Savannah, because delivery was to be made in accordance with “shipping instructions to follow,” as expressly provided in the contract; which shipping instructions, the evidence shows, without conflict, were given the plaintiff unconditioned upon any such cargo space being obtained; and, upon the evidence showing what the plaintiff’s action was, when considered as affected by such shipping instructions, the plaintiff was plainly entitled to recover.
3. For the reasons stated, I think there was no error committed by the trial court in excluding the testimony of the president of the defendant on the subject of there being a ship at Savannah about September 15, 1920, that being immaterial in view of the terms of the contract. And
*1804. The trial was in fact had in all respects just as if the original plaintiff had remained such and Tenenbaum was in fact treated throughout the trial as being merely the beneficial plaintiff. Hence, it seems to me, we should regard the substance of what was done, .rather than the mere form, in the substituting of Tenenbaum as plaintiff, and hold that what was done in that particular was no more, in substance, than what would have been done if the original plaintiff had indorsed the name of Tenenbaum on the writ of declaration as the beneficial plaintiff; to which, as stated in the majority opinion, there was no valid objection under the practice permitted in this jurisdiction.
On the whole, I think the case should be affirmed.