Young

This is an action to recover damages alleged to have been sustained by plaintiff’s assignor by reason of defendant’s refusal to accept and pay for a carload of cocoanut meal purchased by defendant. Plaintiff, who was nonsuited in the court below, appeals from the judgment of nonsuit. The appeal turns upon the construction of the written contract for the sale of the meal.

The firm of Lewis-Simas-Jones Co., a copartnership, has its principal place of business at San Francisco. Defendant’s place of business is in Bakersfield. On May 29, 1920, at Bakersfield, defendant and the copartnership executed a written contract which reads:

On October 4, 1920, Lewis-Simas-Jones Co. shipped the first of the two carloads to defendant, who accepted that carload and paid for it according to the terms of his contract. On November 24, 1920, defendant notified Lewis-SimasJones Co. that he would not accept the remaining carload, which, under the terms of the contract, was to be shipped, i. e., delivered to the railroad carrier f. o. b. at San Francisco, in the month of December following. Because of the receipt of this notice, Lewis-Simas-Jones Co. made no attempt to ship or to deliver or to tender…

I concur in the judgment, but I think the conclusion should be reached upon reasoning different from that which appears in the opinion of the presiding justice. The crucial sentence of the contract, in the light of the question before us, reads: “Rejection on your part of the whole or part of the shipment will cancel the contract, in proportion, without claim for loss or damage. ’ ’ I think the parties intended the word “shipment” as the equivalent of the word “order” and that the sentence should be read accordingly. The word “shipment” has a well-understood ordinary meaning, there is no doubt, but I think it is sufficiently elastic to be employed as a synonym for the word “order.” That the parties to the contract intended so to wrench the word they used from its usual significance is plain to me upon several considerations. Surely there was here but one order, split for convenience into two parts by the language: "Shipment: Oct. 1920 and Dec. 1920. ’ ’ There having been but one order the parties must have had that order—the entire order—in mind when they employed in the crucial sentence the expression “the shipment.” If they had intended the word last mentioned in its ordinary…