Herren v. . Gaines

Reade, J. The case turns upon the construction of the following contract: “We have sold to Messrs. W. and D. all the ginseng we have on hand and shall collect this season or Fall, amounting to from five to eight thousand pounds, as near as we can estimate, including all we shall get.” For the plaintiff it is insisted that at least five thousand ■pounds must be delivered. For the defendant it is insisted that no particular quantity must be delivered, but only so much as was on hand and might be gathered in. Our opinion is with the defendant. In Guillem v. Daniel, 2. M. & Ros. 61, the contract was to deliver “ all the naphtha that the defendant might make from 1st day of June nest, for and during the term of two years, say from 1,000 to 1,200 gallons per month.” The defendant, instead of delivering 10,000 in ten months, which was the minimum amount mentioned, delivered but 3,000, which was all he made. For the plaintiff it was insisted that the defendant was bound to deliver at least 1,000 gallons per month. For the defendant it was insisted that he was not bound to deliver any particular quantity, but only as much as he made. And the court was of opinion with the defend-mnt. Lord Abinger, C. B., said: “I construe it in favor of the *74 defendants as meaning merely that in all probability the quantity of naphtha produced will amount to 1,000 or 1,200 gallons.” And so the contract in reality was this: “ I undertake to sell you all the naphtha that I may make in my works-during the next two years.” In the case of Leeming v. Snaith, 16 Ad. & E., 71 E. C. L. R. 278, the contract was that the defendant sold to plaintiff' “ what he may pull, say not less than 100 packs of combing-skin.” “ Combing-skin ” is a kind of wool, and the defendant was a puller, or preparer for sale, of the article. He delivered a small quantity, but did not deliver 100 packs. In this case the court cited the case of Guillem v. Daniel, supra, and approved it, but distinguished this case from it by reason of the words “ not less than 100 packs,” which made it necessary that the defendant should deliver 100 packs. In the case before us the substance of the contract evidently was, that all the ginseng on hand, and all that might, be gathered during the season, whether much or little, should be delivered, and “ amounting to from five to eight thousand pounds, as near as we can estimate,” were words of mere-expectation, indicating not what was obliged to be delivered,, but what was expected to be delivered. If therefore in construing the original contract the words? “ amounting to from five to eight thousand pounds, as near as we can estimate, ” amount to nothing, and may be treated as? surplusage, the leaving these words out of the copy sent by the defendant to the plaintiff was no fraud upon him. The plaintiff's supposed equity, being based upon this: alleged fraud of the defendant, fails. The injunction will be dissolved, the demurrer sustained,, and the bill dismissed with costs. Per Curiam. Bill dismissed.