On Motion for Rehearing
RENFRO, Justice(dissenting).
In my opinion appellee’s motion for rehearing should be granted and the judgment of the trial court affirmed.
The contract in question is set out in full in the opinion of the court.
In my opinion the contract is ambiguous. It is not clear whether the parties intended by the instrument that McLelland buy exactly 1,500 head of cattle or whether they intended that he buy 1,500 head, less •unmerchantables and the ten per cent c.ut.
According to the contract, the first party, McLelland, agreed to buy and second party, Ross & Sensibaugh, agreed to sell and deliver 1,500 head of cattle with calves thrown in. Then follows the provision that said cattle are to be delivered by pasture. Another provision obligated McLelland to pay in full for the first 500 head and as he received the balance he is to deduct $40 per head until delivery is complete, wherein he will have received credit for the $40,-000 deposit. Then comes a provision providing “all unmerchantable cattle * * * shall be taken out before the ten per cent cut is made.” Then follows the acknowledgment of $40,000 received “as partial payment on said cattle, balance to be paid upon delivery of the cattle at $285.50.”
The cardinal rule in construing a contract is to ascertain and give effect to the intention of the parties. 10 Tex.Jur., p. 272, se,c. 159. The contract must be read and considered and construed as a whole and all of its provisions must be taken into consideration and construed together in order to ascertain its meaning and effect.
The provision “all unmerchantable cattle, such as lump jaws, bad eyes, cripples or defective cattle of any kind shall be taken out before the ten per cent cut is made” an4 the provision “said cattle are to be delivered, if requested, by pasture” pose questions which render the contract as a whole ambiguous and unclear. The term “ten per cent cut” has a meaning peculiar to cattle dealers; so also has the reference to delivery by pasture. A person inexperienced in buying and selling cattle and unfamiliar with the cattle business cannot, without extrinsic evidence, determine the meaning of those expressions.
Do the words in the contract when read as a whole mean that after rejecting the unmerchantable cattle and after taking the ten per cent cut, the appellee must take 1,500 cattle? It seems to me that one could as readily conclude from reading the contract that McLelland will take 1,500 head of cattle less the unmerchantables and less the ten per cent cut. Parol evidence was admissible to explain what the parties really intended by their contract.
The evidence was sufficient to uphold McLelland’s construction of the contract and to support the jury findings in his favor.
*213Other points of error urged by the appellants do not in my- opinion present errors of sufficient consequence to require a reversal.
It is respectfully submitted that the judgment of the trial court should be affirmed.