I concur in the judgment, but I think the conclusion should be reached upon reasoning different from that which appears in the opinion of the presiding justice. [1] The crucial sentence of the contract, in the light of the question before us, reads: "Rejection on your part of the whole or part of the shipment will cancel the contract, in proportion, without claim for loss or damage." I think the parties intended the word "shipment" as the equivalent of the word "order" and that the sentence should be read accordingly. The word "shipment" has a well-understood ordinary meaning, there is no doubt, but I think *Page 176 it is sufficiently elastic to be employed as a synonym for the word "order." That the parties to the contract intended so to wrench the word they used from its usual significance is plain to me upon several considerations. Surely there was here but one order, split for convenience into two parts by the language: "Shipment: Oct. 1920 and Dec. 1920." There having been but one order the parties must have had that order — the entire order — in mind when they employed in the crucial sentence the expression"the shipment." If they had intended the word last mentioned in its ordinary sense, they would have written "a shipment," or "either shipment," or "any shipment."
Further, the contract throughout bears inherent evidence of having been formulated by the filling out of a stock form, but this fact particularly appears from the manner in which, at the left margin of the instrument, the following words appear, each standing in column below its predecessor: "Commodity" "Amount" "Price" "Quantity" "Shipment" and "Payment." It will be observed that nothing was written after "Quantity," as that expression stands in the margin. This circumstance alone is sufficient to stamp the instrument as one made by filling out a stock form. Considering the paper as one so drawn, we inspect more narrowly the language: "Shipment: Oct. 1920 and Dec. 1920." Suppose respondent had purchased but one carload of cocoanut meal, or that the two carloads actually bought were intended to have been "shipped" at one and the same time. The form employed by the seller would have been filled thus: "Shipment: Oct. 1920," if we may assume that to have been the time agreed upon. Under such circumstances there can be no doubt that the word "shipment," where it appears in the crucial sentence of the contract, would have been the equivalent of the word "order." I cannot perceive that it should have a different meaning, as the actual instrument stands, merely because two dates were inserted after the expression "Shipment," where it appears in column in the margin.
Finally, the contract is more logical if the crucial sentence be read: "Rejection on your part of the whole or part of theorder will cancel the contract, in proportion, without claim for loss or damage." This argument interlocks with that above advanced concerning the use by the parties of the word "the" before the word "shipment." Not only, *Page 177 taking the entire phraseology of the contract, does the word "order" fit perfectly the word "the," but the agreement in its entirety seems more consonant with sense if the word "order" be read in the place of the word "shipment." As there was but one order, I can see no good reason for so reading the crucial sentence of the contract as if its terms were to be effective twice — first, to the first carload; second, to the second carload. Such a construction of the sentence is based upon a slavish submission to what, it must be confessed, is the usual and ordinary meaning of the word "shipment." The shackles of such a submission are broken if we attribute to the word the meaning above suggested. It cannot be said that it does not readily lend itself to that meaning. I am convinced that the parties so intended it.
If we so read the crucial sentence of the contract the sole point advanced by appellant at once falls to the ground. The point is stated thus in the opinion of the presiding justice: "It is contended by appellant that by this clause" — what I have termed the crucial sentence of the contract — "respondent was given no greater right than that of rejecting the whole or a part of the shipment after it had actually been made, and that therefore respondent's notice amounted to an anticipatory breach of his contract." With the construction which I would place upon the crucial sentence, this contention is disposed of without the necessity of argument. With that contention respondent's rejection of the cocoanut meal came in the midst of the attempted delivery to him of the full quantity called for by the contract. The fact that it came before the making of the second shipment, taking that word now in its usual and ordinary sense, becomes an utterly immaterial circumstance.
Craig, J., concurred. *Page 178