OPINION DENYING A PETITION FOR A REHEARING.
The opinion of the court was delivered by
Mason, J.:A petition for a rehearing has been filed. It presents nothing which is thought to require any modification of what is said in the opinion, but calls especial attention to several matters not there mentioned, concerning which it is pertinent to add a few words.-
The evidence showed that the goods shipped did not correspond exactly with the order, one item (amounting to $18, out of a total of $336.64) being omitted, and several being changed in some minor detail. It is argued that the trial court may have sustained the demurrer for this reas’on. The defendants are not in a position to take advantage of the failure of the plaintiffs to fill the order with strict accuracy. In their letter of May 4, written after they had received the bill, they made no complaint in this respect, but announced that they would not accept the goods under any conditions. In view of this they could not shift their ground after the action was begun and make a slight variation from its terms a pretext for repudiating' the entire contract.
Again, the plaintiffs’ salesman gave the defendants > a copy of the list of goods at the time they were ordered, made out upon a printed form containing the words: “Styles and prices guaranteed. Subject to change.” It is now argued that the ruling of the district court may have been based on this fact. What*116ever force these, expressions may have acquired in commercial usage, they do not on their face carry any meaning that would enable the defendants by writing the letters shown in'the record to nullify the whole order. Counsel for the defendants practically recognize this, for they admit that they made no argument to the contrary at the trial, and in their brief they say:
“While the custom and usage was not plead in defendants’ answer, it would have been competent for the defendants to introduce such testimony, at least to explain the trade terms: ‘Styles and prices guaranteed. Subject to change.’ It did not become necessary for the defendants to introduce this ■ testimony, as the plaintiffs’ evidence showed that the order was not legally accepted by plaintiffs and that the same was canceled by defendants more than five weeks prior to the time of shipment. ... It was not necessary for the defendants to introduce evidence that they had a right to cancel the order, as the evidence of plaintiffs showed that the order had not been legally accepted and that defendants had written plaintiffs to cancel the same more than five weeks before the time of shipment.”
There is a sharp difference of judicial opinion as to whether the seller should be allowed to maintain an action for the agreed price of goods ordered, where prior to their shipment he is informed that the buyer will not receive them. In many jurisdictions it is held that under such circumstances his only remedy is to sue for the damages occasioned by the breach of the contract. (24 A. & E. Encycl. of L. 1118.) But even where this rule is accepted he is allowed to seek relief by either method in cases where he has been required to manufacture the goods especially for the purpose, and there was testimony that such was the situation here. (24 A. & E. Encycl. of L. 1120. See, also, 20 Harv. L. R. 363.) Moreover, the evidence did not conclusively show that the defendants distinctly repudiated the order before the goods were shipped, so that no question of this character is involved in the present proceeding.
The petition for a rehearing is. denied.