
    3908.
    Brunswig v. East Point Milling Company.
    Decided April 2, 1912.
    Action for breach of contract; from city court of Atlanta-*-Judge Reid. December 2, 1911.
    
      Payne, Little & Jones, for plaintiff.
    
      T. O. Hathcock, for defendant.
   Pottle, J.

1. A contract for the sale of “one ear No. 2 white corn, 1,000 bu. bulk price 91 1/4 cts. per bushel f. o. b. East Point, Ga.,” is not complied with by tendering at the point of delivery a ear containing 1,071 bushels of corn of the quality contracted for.

2. The contract being unambiguous, evidence of a custom of the trade that in sales of the character involved there might be a variance in the quantity contracted for, of from 50 to 100 bushels, was not admissible.

3. Eailure by the purchaser to assign the variation in quantity as a reason for his refusal to accept is not a waiver of his right, when sued for the purchase-price, to plead the failure of the seller to comply with the contract with respect to the quantity tendered. Judgment affirmed.  