I dissent. I construe the contract, in so far as it relates to the stones, to mean that delivery thereof and payment therefor were to be concurrent. The provision for credit, to my mind, manifestly refers only to the post cards. “Cash, less 2yz per cent, within 60 days from the date of the invoice,” evidently means less 2yz per cent, on the four respective prices fixed in the contracts for different classes of cards, and the 60 days are intended to refer to continuous periodic shipments of such cards. The use of the word “invoice” is also significant, in contradistinction to the word “billed” employed in connection with the stones. There is an added term: “After 10 weeks no discount is to be allowed.” This surely cannot refer to the exceptional and unusual instances in which defendants might direct that the stones be shipped to other persons or to themselves—a contingency which involves the discontinuance of part or the whole of the business covered by the contract. The further provision, “All claims for errors and bad of spoiled work are to be made within 10 days after the receipt of the goods,” indicates to my mind conclusively that these terms of credit refer solely to the post .cards.
There remains, therefore, only the language of the contract in so far as it refers directly to the stones. The first paragraph reads:
“These prices [referring to the enumerated prices for post cards] are f. 6. b. cars at Leipsig, and do not include any charge for the lithograph stones; these to be charged for at the current market rate.”
*184In its context, it is evident that the word “charge” is intended merely to mean price, and not to import any term of credit; nor do I put any different construction on the phrases in the other sentence relating to the stones. “You are to bill up to us such stones, etc.”; and “.the stones used on the remainder are to be billed to us until we have them removed.” This, it seems to me, in its context, means only that the defendants are not to be required to pay for the stones until they call for their delivery. If the word “bill” could be intended to import the idea of credit, it is exceedingly significant that no term, namely, length of credit, is anywhere referred to in this connection.
Finally, I do not think that the fact that in one instance the plaintiff, at defendant’s request, shipped some stones (presumably to another manufacturer) and did not demand payment on delivery, can be regarded from any standpoint as a construction of terms of the contract, which, to my mind, are not ambiguous. I do not think that the conduct of the parties, in a single instance, is sufficient, standing by .itself, to give to their acts significance as the construction of contract ; nor do I think that the mere fact that the plaintiff in one case, and under circumstances of which we have no knowledge, did not choose to enforce payment concurrent with delivery, sheds any light on’what either of the parties understood the contract to mean as a ''Whole.