DISSENTING OPINION.
BLAND, P. J.On September 12, 1902, defendant purchased of plaintiff (a New York corporation, authorized to do business in Missouri) one thousand barrels of linseed oil, at a stipulated price, for delivery during the period from November 1, 1902, to August 1, 1903, in lots of not less than seventy-five or more than one hundred and eighty barrels in any one month. The oil was delivered as per contract and all of the purchase price paid, except $1,834.90, which, on demand, defendant refused to pay, hence this suit.
*440The answer Avas, first, a general denial, and, second, three counterclaims, separately stated. The counterclaims were based upon an alleged violation of the folloAving three contracts for the sale and delivery of linseed oil, to-wit:
“St. Louis, Mo., May 28,1901.
“Messrs. A. A. Eberson & Co., “City.
“Gentlemen: — We beg to confirm sale made you yesterday of 300 bbls. of linseed oil at 44c. basis raw for each 7% lbs.
“1c. advance for Boiled and 3c. for Bleached.
“Bulk shipments at 2c. less.
“Terms 60 days from date of each invoice or 1 per cent for cash in 10 days.
“The oil to be taken by you at your option during the months of October, November and December, 1901.
“Thanking you and awaiting your counter-confirmation, beg to remain,
“Yours very truly,
“C. W. Blow, Manager.”
“St. Louis, Mo., Sept. 7, 1901.
“A. A. Eberson & Co., “City.
“Gentlemen:— We beg to acknowledge receipt of your esteemed order for 120 bbls. of Linseed Oil for deliverv at your option betAveen October 1, 1901, and Jan. 30, 1902.
“Raw, at.................40c. for each 7% lbs.
“Boiled at.................41c. for each 7y2 lbs.
“Bleached at..............44c. for each 7% lbs.
“Terms 30 days or 1 per cent for cash in 10 days.
“Please issue counter-confirmation.
“We thank you for favoring us.
“Yours very truly,
“C. W. Blow, Manager.
*441“Correct this please to read June 30th.
“The delivery on above is October 1, 1901, to June 30, 1902.
“C. W. Blow, Manager.”
“St. Louis, Mo., Sept. 12,1901. “Messrs. A.. A. Eberson & Co.,
“City.
“Gentlemen:
“Beg to confirm sale made you on the 9th for 120 bbls. of Linseed Oil for delivery at your option during the period from October 1,1901, to June 30, 1902, at 40c. for each 7% lbs. Raw Oil, 41c., for each 7% lbs: of Boiled Oil, 44c. for each 7% lbs. of Bleached Oil delivered.
“Terms 30 days or 1 per cent for cash in 10 days from date of each invoice.
“Kindly favor us with your counter-confirmation by return mail and oblige.
“Yours very truly,
“C. W. Blow, Manager.”
It was alleged in the three counterclaims, in substance, that defendant, on the first, second and third of October, 1901, demanded the delivery of all the oil called for in the contracts of May 28th, and September 7,1901, and on the twenty-sixth of September, 1901, demanded the delivery of all the oil called for by the contract of September 12, 1901; that plaintiff failed to deliver the oil as demanded, whereby defendant was damaged on account of a decline in the price of the oil thereafter: The counterclaims show that all the oil called for by the several contracts was delivered within the period mentioned in each of them.
A reply was filed, the contents of which it is not necessary to set out, in view of the construction the learned trial court put upon the several contracts. At the opening of the trial the defendant withdrew his general denial and admitted the amount sued for was due under the contract of September 12, 1902.
*442To establish his counterclaims, defendant introduced evidence tending to show that on September 26, and October 1 and 2, 1901, he demanded of plaintiff the delivery of the entire five hundred and forty barrels of oil called for by the three contracts, on which his counterclaims were predicated, and that plaintiff failed to make delivery, and although plaintiff subsequently delivered the oil, within the periods mentioned in the several contracts, the failure to deliver on October first caused a loss to him.
The court, at the instance of plaintiff, gave the following instructions:
“The court instructs the jury that under the pleadings and admissions of the defendant in this case the plaintiff is entitled to recover on the cause of action stated in the petition, and your verdict must, therefore, be in favor of the plaintiff on the plaintiff’s cause' of action for the sum of eighteen hundred and thirty-four dollars and ninety cents, with interest on said sum at the rate of six per cent per annum from February 1, 1904, to this date, amounting in all to the sum of two thousand and sixty-two dollars and sixty cents.
‘“The court instructs the jury that finder the pleadings and the evidence the defendant is not entitled to recover under any of his counterclaims.”
Verdict and judgment for plaintiff for $2,062.60, from which defendant duly appealed.
1. The learned trial judge ruled, that under the contracts of May 28 and September 12, defendant had no right to demand the delivery of all the oil on one day. Under the contract of September 12, 1901, deliveries at defendant’s option were to be made “during the period from October 1, 1901, to June 30, 1902.” Under the contract of May 28, 1901, oil was to be taken by defendant, at his option, “during the months of October, November and December, 1901.” Under the terms of the latter contract it is evident the parties con*443templated deliveries should he made in each of the months of October, November and December, as ordered by the defendant; if such was not the understanding, then the disjunctive “or” instead of the conjunctive “and” between the words, “November and December,” would have been used. The contract of September 12, 1901, on account of the use of the phrase, “during the period from October 1, 1901, to June 30, 1902,” is left in uncertainty, for the reason the word “during” may mean “in the time of” or “through the continuation of” the period mentioned in the contract for delivery (Bird v. Beckwith, 60 N. T. Supp. 1041); if it means “in the time of” the contract period, defendant had the right to order all the oil called for by the contract to be delivered on the first, or on any other day between October 1,1901, and June 30,1902; if it means “through the contract period,” then defendant was required to exercise his option, if he elected to exercise it, by ordering oil at reasonable intervals, through the contract period. For the purpose of determining what was in the minds of the parties, in respect to the delivery of the oil, we think the court properly admitted evidence of the previous course of dealings between the parties. This evidence was brought out on the cross-examination of plaintiff’s witnesses, and showed that defendant was a manufacturer of paints and varnishes, in the city of St. Louis, and to some extent a wholesale dealer in linseed oil; that he used about one barrel of oil per day in his business, and since 1899 had obtained his supplies from plaintiff which, with the exception of a few large orders delivered to defendant’s customers on his order, were delivered at his place of business in small quantities, at intervals of a few days during each month as he would order. In the light of this evidence, we think the word “during,” as used in the contract, should be construed to mean “in the time of,” and that the parties meant *444and intended that the oil called for by the contract should be delivered through the contract period, that is, deliveries should be made in each month of the period as ordered by defendant. Under this construction defendant was not entitled to recover anything for the alleged violation of the contracts of May twenty-eighth and September twelfth.
2. In respect to the contract of September seventh, I think defendant had the option to require a delivery of the one hundred and twenty barrels of oil mentioned in that contract on any day between October 1, 1901, and June 30, 1902, and is entitled to recover, if he exercised his option by demanding the delivery of the one hundred and twenty barrels on any day between said dates. Defendant’s testimony is that he demanded a delivery of all the oil called for in the three contracts on September twenty-sixth, and renewed his 'demand on October first and second; that plaintiff denied he was entitled to a delivery of the whole and thereafter delivered the oil from time to time in small quantities until it was all delivered. There was no separate demand made at any time for the delivery of one hundred and twenty barrels of oil called for in the contract of September seventh. It is conceded that under the terms of said contract, a request for the delivery of the one hundred and twenty barrels of oil was an essential prerequisite to defendant’s right to recover for a breach of the contract; and defendant contends that as the demand for the delivery of five hundred and forty barrels necessarily included the one hundred and twenty barrels, the delivery of the one hundred and twenty barrels was requested. The demand was for the performance at one time of three distinct and independent contracts as though they were one. If the demand had individualized the several contracts, and defendant had requested a delivery of .all the oil specified in each, plaintiff would have been notified that defendant de*445manded a performance of the contract of September seventh; but the demand for the delivery of five hundred and forty barrels of oil cannot be construed to be a separate request for the delivery of one hundred and twenty barrels, under the contract of September seventh, nor would the tender of a. delivery of the one hundred and' twenty barrels by plaintiff have been a compliance with the demand for the delivery of five hundred and forty barrels. When a demand for performance is an essential prerequisite to recover for a breach of a contract, the demand should not be for more than the plaintiff is entitled to have, and should be sufficiently definite and certain to notify the opposite party that a performance is requested. If the demand is coupled with or only embraced in a demand for the performance of several contracts in gross, the performance of some of which is not due, the demand is too uncertain to require performance. If A held B’s three several promissory notes due on different dates but not to bear interest until after maturity and demand of payment, and on the maturity of the first note to become due, B should demand payment of all three of the notes, it would hardly be contended that the demand was sufficient to entitle B to interest on the first note to fall due from the date of his demand. So, the demand of defendant for the delivery of all the oil covered by the three contracts (five hundred and forty barrels) when he was entitled to have but one hundred and twenty barrels, was not a demand for the delivery of the one hundred and twenty barrels, and hence defendant was not entitled to recover on his counterclaim for a breach of the contract of September seventh. For these reasons I think the judgment should be affirmed.