
    Ellsworth Coal Company vs. J. P. Partridge Company, and Trustee
    Hancock.
    Opinion November 12, 1927.
    
      “80-60 days” in the recital of a contract concerning trade acceptances construed 80 and 60 days, and that one-half in amount of the trade acceptances might he on 80 days and the rest on 60 days.
    
    
      The law indicates an equality of division when no other manner for dividing is defined.
    
    On general motion. An action on the case for breach of contract, by plaintiff, a corporation, against defendant, a partnership, and Charles Holtz, Trustee, involving the purchase by plaintiff of twelve hundred barrels of flour from defendant. Plaintiff contended that it was to have thirty or sixty days time if necessary for payment, while defendant claimed that plaintiff was to have thirty days for payment on one-half of the amount of the bill and sixty days for payment for the other half, if necessary. Defendant refused to ship the remaining eleven hundred barrels after one hundred barrels had been shipped and paid for on the ground that plaintiff was not to have sixty days for payment and this action was brought. Verdict was for the plaintiff and defendant filed a general motion for a new trial.
    Motion sustained.
    New trial granted.
    The case sufficiently appears in the opinion.
    
      D. E. Hurley, for plaintiff.
    
      D. I. Gould, for defendant.
    Sitting: Wilson, C. J., Philbrook, Dunn, Deasy, Sturgis, Pattangall, JJ.
   Dunn, J.

Plaintiff contracted to buy twelve hundred barrels of flour from the defendant, to be paid for on arrival draft with bill of lading attached, or, at the buyer’s option, by what are known as trade acceptances, as installments of the flour should arrive on order at destination. One hundred barrels of flour are to be regarded as having been delivered.

On the jury trial of this action, bottomed on the alleged refusal by the defendant to deliver the remaining eleven hundred barrels, the plaintiff had the verdict.

Whether that verdict manifestly is against the evidence, and therefore ought to be set aside, is presented in the motion filed by the defendant, which motion brings the case here.

The underlying inquiry is not if the written agreement introduced into the evidence by the defendant was then in the same material form as it was when signed by the parties, but whether that signed agreement put in evidence by the plaintiff, of which it was insisted by the plaintiff that the agreement introduced by the defendant originally was counterpart, supports the contention of the plaintiff.

That signed agreement which the plaintiff introduce/d was free from ambiguity. Concerning the trade acceptances, which the plaintiff had the option of giving, legal construction of the recital of the contract is, that these could have been on 30 and 60 days, and not as the plaintiff now argues, on 30 to 60 days. That arbitrary sign which had been written by hand, between the numerals “30” and “60,” in the agreement relied on by the plaintiff, is only too plainly the familiar one for the coordinating conjunction “and.”

And the equality of division which the law indicates when no other manner for dividing is defined, imported into the meaning of the contract, that one-half in amount of the trade acceptances might be on 30 days and the rest on 60 days.

If, on the plaintiff’s version, the minds of the parties did not so meet, then the minds of the parties did not meet at all.

When the plaintiff ordered that flour be shipped, and on no other terms than sixty-day acceptances, the defendant in ignoring that order breached no contractual duty.

Obviously, the verdict is contrary to the evidence.

Motion sustained.

New trial granted.  