
    The Xenia Gas Light and Coke Company v. Jacob Gardner.
    Under a contract for the sale of five to ten thousand bushels of coal (as the purchaser may wish), to be delivered in the future, between certain dates, the purchaser, if he wishes to take more than five . thousand bushels, must notify the seller of his election a reasonable time before the commencement of the period within which the delivery must be made under the contract.
    Motion for leave to file a petition in error to the District Court of Greene county.
    On the 25th of March, 1871, the defendant submitted to the plaintiff in writing a proposition as follows: “ Cincinnati, March 25, 1871. To" the Xenia Gas & Coke Co., Xenia, Ohio. ... I also agree to furnish you and deliver in cars on track at Cincinnati five to ten thousand bushels (as you may wish) of the best quality of Youghigheny coal, delivered in the mouths of October and November, 1871, at twelve (12) cents.”
    On the same day, the plaintiff’ endorsed its acceptance thereon as follows: “ "We the Xenia Gas Lt. and Coke Co. do accept of the within proposition from Jacob Gardner.”
    About the middle of October, 1871, the plaintiffs notified the defendant of its election to take the full 10,000 bushels. The defendant delivered 5,500 bushels, and no more. The original action was brought to recover damages for the non-delivery of 4,500 bushels.
    
      
      Nesbitt $ Martin, for the motion,
    cited Disborough v. Neil-■son, 8 Johns. 81; 2 Parsons on Contracts (3d ed.), 184 and •note.
    
      Charles Darlington, contra,
    cited 2 Parsons on Contracts, 661; Tapping v. Moot, 5 Cowen, 404; Disborough v. Neilson, 3 Johns. 81.
   By the Court.

The notice by plaintiff to the defendant of its election to take the whole of the 10,000 bushels was not given within a reasonable time. It should have been given a reasonable time before the commencement of the period within which the coal was to be delivered under the contract.

Motion overruled.  