
    Cincinnati, Hamilton and Dayton Railroad Company v. Samuel Dickey.
    October 24, 1865, the railroad company gave D. an order for a quantity of timber for building cars. On the 9th of March following, none of the-timber having been delivered, the company countermanded the order,, and stated that D. might deliver the “ sticks ” he had then ready, but need not saw any more. D. having logs then on hand, sawed them and. delivered all the timber to the company, which refused to receive that part thereof which had been sawed after the original order was countermanded. Held, that the contract between the parties, made by the original -.order and countermanding order, did not embrace the lumber sawed by D. after the revoking order was received by him.
    Error to the District Court of Butler county.
    
      Dickey sued the Cincinnati, Hamilton and Dayton Railroad Company for a bill of car lumber. He alleged in his-petition, that there was due to him, from the company,. $337.30, for lumber sold and delivered by him to the company, at its request. He attached to his petition, as part-thereof, a bill of lumber, showing the number of pieces, size,, length, and price of the lumber sued for.
    The answer of the company denied that Dickey delivered,, and that the company received any portion of the lumber, and denied its indebtedness as stated in the petition.
    The case was tried to a jury, and Dickey recovered a verdict. Exceptions were taken to the ruling of the court.
    The bill of exceptions shows that on October 24,1865,, the company, byD. McLaren, general superintendent, gave: a verbal order to Dickey, to deliver at Middletown station, about $10,000 worth of sawed lumber, suitable for building railroad ears. There was no time fixed for delivery. The-price to be paid, and the size of the pieces, were about as-stated in the petition. Up to March 9, 1866, no lumber had been delivered. March 9,1866, McLaren, superintendent, sent to Dickey, an order of countermand, as-follows :
    “ Cincinnati, March 9, 1866.
    “ S. M. Dickey, Esq. Dear Sir: The order sent to you October 24, 1865, is now countermanded. We could not' wait, and had to get the timber elsewhere.
    “ However, you may send us the few sticks you have now ready. But you need not saw any more, unless otherwise-ordered. Yours, D. McLaren, Sup’t.
    
    
      “ By P. Hickey.”"
    The testimony of Dickey tended to show, that a part of the lumber for which suit was brought, was sawed before the-order of countermand, and a part afterward, but that the-logs out of which it was sawed were all ready at the mill when the countermand came.
    Other testimony tended to show, that a part of the lumber was sawed as late as June, 1866, that the lumber was-■delivered, at Middletown station, in the spring and summer •of 1866, and that the company used a part of it.
    The testimony of the company tended to show, that the lumber was not delivered to it, but in July or August, 1866, was deposited on public ground near the station, without the knowledge of the company; that the company did not .accept, or use it, and that the “ big flood ” of September, 1866, swept it away, and it was lost. Thereupon, the court ■charged the jury as follows :
    “ If the testimony shows, that on the 9th of March, 1866, when the order was countermanded, the plaintiff (Dickey), in good faith, had provided logs, and had them in the yard, for the purpose of complying with the contract ou his part, and was actually engaged in sawing logs, at the time the ■countermanding order reached him, he might still go on, under a fair construction of the original order, and revoking order, and saw out such logs as above referred to, and deliver the lumber in fulfillment of the contract, to that extent on his part. But that after said countermand, Dickey could not procure new logs to be sawed under the original order.”
    Judgment was rendered in common pleas against the railroad, which was affirmed on error to the district court. To reverse the judgments of the courts below, this petition in error was prosecuted in the supreme court.
    
      Thomas Millikin, for plaintiff' in error.
    
      John C. McKerny, and Allen Andrews, for defendant in error.
   Day, Chief Judge.

The railroad company, on the 24th of October, 1865, gave a verbal order to Dickey for car lumber, to consist of sawed timber from nine to thirty feet in length, and from four to six inches by five to twelve inches iu size.

On the 9th of March, 1866, the order was countermanded. The right of the company to revoke the order does not appear to have been questioned; but the contest related solely ■to tho extent of the limitation of the original order contained in the rescinding order.

It is claimed by the company that the original order was revoked to the full extent, except as to such sticks of the timber ordered as Dickey then had sawed and ready for delivery. On the other hand, it is claimed that all the logs Dickey then had at his mill ready to be sawed, were exempted from the revocation.

The question, then, is, whether the contract as made by the original and subsequent countermanding orders included the unsawed logs on hand, as well as the timber then sawed.

The first clause of the countermanding order is a full revocation of the original order, and the reason assigned is that the company “ could not wait, and had to get the timber elsewhere.” The word “ timber ” in this clause evidently refers to the sawed lumber originally ordered. In the next clause, permission is given to deliver “the few sticks” then ready. The word “sticks” here evidently refers to the word “ timber ” in the sense it is used in the former clause, meaning sticks of timber then ready. The word “sticks” can not mean the unsawed logs on hand, as if the writing had said “you may send us the logs you have now ready.” It evidently refers to the sawed sticks of timber then ready for delivery. It was not logs, but sawed lumber that was> ordered ; and that sawed sticks were alone referred to, is evinced by the concluding clause, which clearly interdicts the sawing of “ any more ” sticks, logs or timber, in -any sense either of the words may be used. The contract, as composed of the orders in question, did not, then, include the unsawed logs.

The court, therefore, erred in charging the jury that it was the right of Dickey, under a fair construction of the ■original order and revoking order, to saw the logs on hand, and deliver the lumber .in fulfillment of the contract.

What rights, if any, Dickey had to recover damages for the revocation of the original order, we are not called upon to determine; for the action was not brought for the breach of a subsisting contract, but it was brought for a specified quantity of lumber sold and delivered by Dickey to the company, as upon an executed contract.

So far as the contract affected the rights of the parties, they were entitled to a correct construction of it. That given by the court, we think, was unwarranted, and was to the prejudice of the plaintiff in error. The judgment of the district court, and that of the common pleas, must,., therefore, be reversed, and the cause remanded to the latter court for a new trial.

Judgment accordingly.  