Canton Lumber Co. v. Liller

68 A. 500, 107 Md. 146, 1908 Md. LEXIS 7

• Court: Court of Appeals of Maryland
• Decided: January 7, 1908
• Status: Published

Opinion

Pearce, J.,

delivered the opinion of the Court.

This suit was brought to recover damages for an alleged breach of contract, The declaration alleges in substance that the defendant, the Canton Lumber Company of Baltimore City, agreed to sell and deliver to the plaintiff on or before July 1st, 1903, all the lumber necessary for the erection at Keyser, West Virginia, for the Baltimore and Ohio R. R. Co. of an ash pit, coal tipple and sand house, said lumber to conform to certain specifications set out in the declaration, and to be subject to B. & O. R. Co.’s inspection; the plaintiff to pay for same at the rate of $20 per thousand feet; but that the defendant did not deliver lumber conforming to said specifications, nor within the required time, and that the lumber delivered was inspected by the B. & O. R. R. Co. as provided by the contract; and was rejected as not complying with said specifications; and that because of said breach of contract the plaintiff was obliged to purchase in the open market about 466,837 feet of lumber at a price in excess of that agreed upon between the plaintiff and defendant, and to incur large addi tional expense on account of the delay in procuring said lumber, the whole loss to the plaintiff being the sum of $8,961.21.

The plaintiff obtained a judgment for $3,350, and the defendant has appealed. The case was tried upon the general issue plea, and there was considerable conflict in the testimony as to the specifications, and the inspection made, which resulted in the rejection of most of the lumber, and it will be necessary to summarize the more important parts of the evidence, before going into the law of the case.

The plaintiff and defendant had previous business relations, and there had been some correspondence between them in anticipation of the awarding of the contract for the erection of this coal tipple and sand house to the plaintiff by the B. & O. 'R. R. Co. In order to aid the plaintiff in securing this contract, the defendant named the price $20 per thousand at which it would be willing to furnish the necessary lumber, if the contract should be given to him, and he should determine to purchase the lumber from the defendant.

On March 28th, 1903, the plaintiff wrote the defendant that 'the contract had been awarded to him, and that he would furnish defendant as soon as possible with list of sizes of material “which you are to furnish me at $20 per M. ft. all around, f. o. b. B. & O. cars your city.” He had previously bn March 24th, sent defendant an approximate list of the sizes of material, stating that as soon as the contract was actually awarded and signed he would furnish corrected list. On March 31st, he wrote defendants, enclosing corrected list of number of pieces, sizes, dimensions, and kind of lumber to be furnished. The testimony of the plaintiff himself, and of Mrs. Ayer, his stenographer who wrote the letter of March 31st, was that upon the margin of this list there was written by the plaintiff in blue pencil, “All stock to be Ga. Y. P. or heart white oak, except what is marked N. C. Y. P. and all subject to B. & O. inspection.”

On April 2nd defendant acknowledged receipt of revised list of material, and returned n order that all items of N. C. pine might be designated. On April 3rd plaintiff again returned the list marked as requested, and on April 4th defendant acknowledged receipt of same. These letters constitute the formal contract between the parties, together with the corrected- list of material. The plaintiff himself testified that he made the blue pencil memorandum, “all subject to. B. & O. inspection,” on the corrected list of material before sending it to defendant on March 31st, but that memorandum was not on the approximate list sent defendant March 23rd, and that the original offer of $20 per M. was made on the approximate list. Mrs. Ayer, plaintiff’s stenographer, testified that she typewrote the letter of March 31st.and the corrected list enclosed and that she saw Liller write the blue pencil memorandum on that list at that time; that she saw this list when defendant returned it for notation of N. C. pine, and that the blue pencil memorandum was then on it, just as originally written. Mr-. Virdin, secretary of defendant, testified that he conducted the correspondence of the company; that in the preliminary negotiations leading up to this contract Liller told him the lumber was for a coal tipple for the B. & ü. R. R. Co. and that he went over the estimated list with Liller, and was quite sure Liller understood that as high a grade of timber as they had been fnrnishing him, which was merchantable timber, was not required and therefore he could furnish it at $20 per M. He testified that when he received the corrected list of material in the letter of March 31st there was no blue pencil memorandum thereon, nor any reference to B. & O. inspection, and that he furnished the lumber in pursuance of plaintiff’s letter of April- 3rd already referred to. On cross-examination he said this corrected list was not •returned to him with letter of April 3rd, but only a carbon copy on which there was a marginal note as follows: “All stock to be G. Y. P. or heart white oak, except what is marked N. C. Y. P. all subject to B. & O. inspection,” but that he understood that was merely a matter between the plaintiff and the B. & O. R. R. under their contract with him, and therefore made no difference to defendant.

-■ Mrs. Hamill, the defendant’s book-keeper and stenographer, testified that she copied the corrected list on April 2nd, before it. was returned to plaintiff for notation of N. C. pine, and that there was then no blue pencil memorandum thereon.

The contract between the plaintiff and the R. R. Co. was not actually signed until April 22nd though awarded March 28th. On March 23rd defendant wrote plaintiff, saying they understood “nothing was binding until papers are signed,” but asking for memorandum of sizes, &c., “so that we can do some figuring.” It was obviously in reply to this that the approximate list of March 24th was sent.

The lumber was shipped to the plaintiff at Keyser where it was unloaded from the cars, was inspected by the B. & O. inspectors, and the greater part was condemned as not coming up to the specifications. The plaintiff cut up and used irt the construction of the tipple, a portion of the lumber which passed inspection, and the defendant subsequently removed the rejected lumber, and the plaintiff purchased other lumber elsewhere to enable him to fulfill his contract with the B. & O. R. R. Co. The plaintiff notified defendant on July 31st, 1903, that.Mr. James, one of the B. & O. inspectors, thought he would be obliged to condemn the lumber as not up to the specifications, and plaintiff in that letter said it was probable the B. & O. people would send an inspector from Baltimore to go over the whole lot, and advised defendant to have a representative on the ground also. There does not appear to have been any reply to that letter, but there are subsequent letters between the parties relating to that subject, in which the defendant apparently acquieces in the right of inspection bp the B. & O. R. Co. Thus on August 3rd plaintiff wrote defendant that he put in a whole forenoon with Mr. James, and that the outlook was better than at first appeared, but that the lumber then thrown out was nearly all saps or contained large unsound knots; that Mr. James was going to Baltimore that evening with samples he had sawed off, and that plaintiff was afraid there would be further trouble; that he was doing all he could for defendant in the matter and try ing for the sake of “Auld Lang Syne” to get them out of the matter as whole as possible. On .August 4th defendant acknowledged plaintiff’s letter of the 3rd with thanks, and expressed the hope “that you will come out as well as you anticipate, saying “we can do nothing but await results.” On August 7th defendant acknowledged receipt of two letters, of 3rd and 6th inst. (which are not in the record) and expressed regret that the B. & O. people want to open the timber question again, and say “if they decide to put an inspector on this lumber, we think it would be better to have him come here and inspect what is on the steamer now as we load it on cars, so there will be no come back on that.” On August 8th plaintiff replied that he thought it would be best to hold upa day or two longer until the inspector reached Keyser and they could find out what he was going to do about lumber already there. In none of these letters, and in none of the correspondence prior to defendant’s letter of September 10th, is there any denial of the right of inspection by the B. & O. people, or any intimation of any dissent therefrom. Plaintiff had written defendant on September 9th notifying it of the final rejection of the lumber and that he should hold them liable for loss involved, to which they replied saying that the lumber came fully up to specifications, and declining to recognize any liability to plaintiff. Mr. Virdin testified that he knew this lumber was for a tipple and sand house for the B. & O. R. R. Co. and that he knew whatever the plaintiff put in for B. & O. work was subject to its inspection, but that he furnished the kind and grade of lumber agreed upon between him and the plaintiff; he admitted that on August 10th he replied to plaintiff’s letter of the 8th inst., and said, “We think, as you, that it is best not to stir up the B. & O. people about an inspector, and if they decide to forget it; they will have our everlasting blessing.” He explained that in writing that letter, he was interested in Mr. Liller as a good customer, and did not want the lumber turned down, because he would have to compel plaintiff to pay for it.

The blue print specifications governing the contract between plaintiff and defendant were as follows: “Lumber to be of good quality, free of large, unsound, or loose knots also free of sap or other defects which will materially affect its strength. It must be sawed to true dimensions and straight.”'

The contract of plaintiff with the B. & O. R. R. Co. provides: “All timber must be sound and free from sap, loose or rotten knots, wind shakes, or any other defects, which would impair its strength and durability, and shall be acceptable to the engineer: it must be in addition to the above straight grained.and sawed perfectly straight and to the exact dimensions, with full corners and square edges.” Thus it will be seen that the latter specifications are some what more rigid than the former, though the difference is not very great.

The two principal grounds of defense set up, are, first that there was go requirement for inspection by the B. & O. R. R. Co. and second that even if there were this requirement, the inspection made was under the specifications of the plaintiff’s contract with the B. & O. and not under the specifications of the contract between the parties to this suit. The testimony upon the first of these defenses has already been referred to, and that upon the second will now be briefly stated. .

■ The plaintiff testified that the B. & O. R. Co. inspectors had no right to inspect on any other scale than that of the blue print specifications but that in fact the lumber was condemned under the blue print specifications alone and that he had repeatedly told Mr. Virdin that the lumber was subject to B. &' O. imspection. Four witnesses testified for the plaintiff as to how the inspection was made» Mr. Jones, a civil engineer, testified that in the spring and summer of 1903 he was in charge' of the construction of the new plant of the B. & O. R. R. Co. at Keyser, that he knew Mr. Virdin as the representative of the Canton Lumber Company, and that in a conversation with him' in reference to this lumber, Mr. Virdin admitted he knew it was to be subject to B. & O. inspection, and that it'was inspected under the blue print specifications; that he himself had originally had supervision, and when he found so much of the lumber unfit, he took the matter up with Bal timore and they sent up some of their regular inspectors, among them a Mr. Stottlemeyer; and that the lumber did not measure up to the blue print specifications; that is 80 or 90 per cent did not; that it was sappy, had a great many large knots, and some was badly wind shaken; some was soft and doty — it was inferior lumber; that knowing the lumber was defective, he hesitated to condemn it because of the delay this would cause in getting the plant in operation, and turned the inspection over to the lumber inspector; that when the inspector came he gave him the blue print and told him to go ahead.

Mr. Stottlemeyer testified that he had no instructions; that Mr. James gave him the blue print specifications and that he went ahead according to these and to his own judgment as to what the lumber was to be used for; that he inspected all the lumber under the blue print specifications offered in evidence and that none of the lumber he rejected, measured up to these specifications. On cross-examination, he testified that he did not let the blue print govern his judgment entirely and that he inspected the lumber in accordance with what is merchantable lumber.

On redirect examination he testified he inspected the lumber “on his judgment as it applied to the specifications on the blue print, and that the lumber rejected did not measure up to these specifications, and that if it had measured up to them he would not have rejected it.”

Mr. Andrews testified that in the summer of 1903 he was assistant engineer of bridges for the B. & O. R. R. Co., that he knew Mr. Virdin and talked with him in December, ig02, about some lumber the Canton Lumber Co. was proposing to furnish the B. & O. for round houses at Keyser, and that he then told Mr. Virdin all lumber purchased by contractors for B. & O. work, was subject to B. & O. inspection; that after the inspection of the lumber now in question by Mr. Stottlemeyer, that the witness and Mr. Clay made a final examination; that he had seen the blue print specifications, and; that the lumber did not come up to their requirements, anc| that was the reason he rejected it. On cross-examination he testified that he turned the lumber down both for the reason that it did not conform to the blue print specifications, and also that it was unñt for the purpose for which it was to be used; that Mr. Kinsman, engineer of construction, directed that the inspection should be made under the contract of Liller with the railroad company, but that it was in fact made not on the wording of that contract, but on the wording of the blue print, and that he and his associates “only took into consideration the specifications as written on the blue prints.”

Mr. Kinsman testified that after receiving the report of Mr. Stottlemeyer, Mr. James and Mr. Clay, he himself saw the lumber, that there were two specifications, the blue print, and those in Liller’s contract with the R. R. Co. that -he could not state under which of these the inspection was made, but that in his judgment the lumber did not measure up to the blue print specifications; that he directed Mr. Alexander to have it inspected both under the contract of the R. R. Co., and under the blue print specifications, and that if inspected under either it would have been condemned.

Mr. Virdin testified for defendant that there is a recognized custom in the lumber trade that upon inspection the buyer must accept all or reject all, unless the seller consents to acceptance of part and rejection of part, and Messrs. Edward P. Gill, Wm. M. Burgan and Louis Dill, all experienced lumber dealers, testified to the same effect.

Mr. Berryman, general manager of the defendant, testified that he was familiar with the grading of lumber and was at one time inspector for the Tunis Lumber Co.; that he saw this lumber when it was discharged from the steamer and loaded on cars and that it compared favorably to the grade required by the blue print specifications; that Mr. James told him the lumber was unfit for the work required, and that he was condemning it “not under the blue print specifications, but under other specifications, and also as to what it had to be used for.” He further testified that there was a- great difference between the specifications under which Mr. James was inspecting and those under which plaintiff had ordered the lumber, the former being much more exactingffn its requirements.

John H. Younger and William A. Barnes, sworn inspectors of the Baltimore Lumber Exchange, testified that they were furnished with the blue print specifications in evidence. Mr. Younger testified that he made the inspection under these specifications, but as will hereafter appear was not allowed to state whether the lumber was such as was called for by the specifications.

Mr. Barnes testified that he only inspected the lumber on the Schooner Arragon arid that he did not know whether that was used by Mr. Liller or not, but that all he inspected would come up to the specifications.

During the delivery of this testimony six exceptions were taken by the defendant to the rulings of the Court, and the seventh exception was taken to the ruling on the prayers. While the plaintiff was on the stand, after stating that his last dealing with the defendant had reference to the purchase of lumber for the coal tipple and sand house of the B. & O. R. R. at Keyser in 1903, he was asked this question, “Had the Balto. & Ohio Rail Road Co., or not entered into an agreement with you whereby you were to furnish all the lumber, and do all the work toward the erection of this building?”

The defendant objected to this question and the objection being overruled, the first exception was taken. To sustain this exception the defendant relies upon Baker v. Gunther, 53 Md. 374. In that case the issue was whether work was done and materials furnished by the plaintiff to defendants under a contract between them for the construction of an embankment for defendants, who occupied a pier on ground belonging to the Canton Co. The defendants offered in evidence a lease between them and the Canton Co. made after the embankment; was begun, for the purpose of showing that it was the company’s duty to construct the embankment, and the lease was held inadmissible. That was obviously correct, because even if as between Baker and the Canton Co. the company was bound to erect the embankment, that would be no defense to a contract between Baker and Gunther, by which Baker assumed a liability to Gunther. Nor do we perceive anything in B. & O. R. R. v. Stewart, 79 Md. 487, to aid this exception. Here the fact of the contract alone was proposed to be shown without invoking any of its terms as affecting the contract in suit or the right of recovery thereon. The fact of the existence of such a contract was relevant and material upon the question of the right of the plaintiff, upon a breach of his contract with the defendant to go into the market to procure lumber necessary to enable him to fulfill his contract for the erection of the coal tipple and sand house.

Mr. Virdin being on the stand for defendant, after testifying that he had had numerous other contracts with Mr. Liller to furnish lumber for work for the B. & O. R. R. was asked, “Did you not know, and had you not been so informed that all those contracts for lumber must be subject to B. & O. inspection?” An objection to this question was overruled and the second exception was to this ruling. There was testimony tending to show that before this time Mr. Virdin was informed that all lumber furnished by contractors for B. & O. work was subject to B. & O. inspection, and Mr. Virdin himself subsequently testified that “he had a general understanding that the B. & O. inspected everything that went into their construction.” This question therefore did not present the case of merely one contract as compared with one other, both isolated, but rather a question of the uniform custom of the B. & O. R. Co. in reference to such contracts, and we do not think there was any error in this ruling.

Mr. Edward P. Gill, a witness for defendant, after testifying to a custom as to the right to reject part orall of a cargo or carload of lumber not up to specifications, was asked this question, “Did your firm furnish some of the lumber used in this coal tipple to be erected by Mr. Liller?” This question was excluded and the third exception was taken to this ruling. The purpose of this question evidently was to show that the lumber furnished by witness’ firm was of a better grade than that required by the blue print specifications. But that was not the question for consideration. The only question was whether the lumber delivered by the defendant satisfied that contract. If it did not, then the fact that the plaintiff accepted from Mr. Gill’s firm lumber which was superior to that which they rejected when offered by defendants would not tend to show whether defendants’ lumber was up to the specifications or not. We can discover no -error in this ruling.

The fourth exception was abandoned apparently, riot having been adverted to either in the brief or in the oral argument of the appellant, but the question was free from error; since it merely asked if the alleged custom would apply if there was a previous agreement for the use of part of the lumber and the return of the rest, and it is obvious that a special agreement would supersede a general custom.

Theodore Mottu, an expert in the lumber trade, called to corroborate Mr. Gill as to the alleged custom was asked this question. “Look at the specifications set out on this blue print and tell the jury whether these specifications would meet the grade of what is termed merchantable lumber under the rules of 1883?” The plaintiff objected to this question and the objection was sustained and the fifth exception was taken to that ruling.

The argument of the appellant upon this exception is made upon the assumption that the only inspection made was upon the standard of merchantable lumber under the rules of 1883, and that these rules would require a higher grade than that required by the blue print specifications. But neither of these assumptions is sustained by the evidence. There is no attempt in the evidence to define the standard of merchantable lumber under the rules of 1883. Moreover it has been shown already from the testimony of Stottlemeyer that while this lumber was not merchantable in his -judgment it failed to measure up to the blue print specifications, and that if it had done so, it would not have been rejected. It has also been shown from the testimony of Andrews that while. Kinsman’s instructions were to inspect under the contract between Liller and the Railroad Co. that he disregarded those instructions, but inspected under the blue print specifications alone, and that the lumber was rejected solely because it did not meet their requirements. It has also been shown from the testimony of Kinsman that while he directed the inspection to be made both under the contract between Liller and the R. R. Co. and the blue print specifications, that he examined this lumber and that it would not conform to either test. It is thus apparent that the blue print specifications called for merchantable lumber under the rules of 1883, and unless merchantable lumber under those rules was shown to be a higher grade than that called for by the blue print specifications, anytechnical error in excluding this question cannot be regarded as reversible error.

The sixth exception was not noticed in the argument or brief of the appellant. It is not clear what the offer was, but if we assume that it was to show by Mr. Younger that the lumber came up to the blue print requirements, we think the ruling was correct, since the admission of such testimony would be to substitute his inspection, for that required by the contract, which, in the absence of fraud or bad faith is com elusive.

This brings us to the prayers, those of the plaintiff being all granted, and those of the defendant all refused.

The chief points of contention on the law are, 1st, Whether the contract was entire or separable; and 2nd, even if separable, whether under the evidence of custom offered by the defendant, the acceptance of part of the lumber was in law an acceptance of the whole.

The defendant did not discuss any of the plaintiff’s prayers, and we do not understand it to question the legal proposition submitted in the plaintiff’s first prayer, that if the contract provided for inspection of this lumber by the B. & O. R. R. Co. and such inspection was made in good faith in the manner agreed on, that it was conclusive as to the quality of the lumber. It could not be seriously questioned as the law of Maryland since the decision in Lynn v. B. & O. R. R. Co., 60 Md. 414, and B. & O. v. Brydon, 65 Md. 220—221, and it follows that the plaintiff’s first prayer was properly granted. We can discover no evidence in the record to show fraud of bad faith on the part of the B. & O. inspectors in making the inspection and there was no error in granting the plaintiff’s fifth prayer to that effect.

The plaintiff’s second and fourth prayers may be considered together. The second prayer, after requiring the jury to find the sale of the lumber, the contract for inspection, the inspection made in accordance with the contract, and the rejection of a large párt of the lumber because it did not measure up to the specifications, asserts in substance that if in consequence of such facts, the plaintiff was obliged to purchase other lumber to take the place of that which was rejected, and was delayed in the execution of the contract with the R. R. Co. then he was entitled to recover the difference between the contract price for such lumber and that which he was required to pay in open market together with such damages as ■ the jury should find necessarily incident to the delay in completing the work.

The fourth prayer instructed the jury, that the use of apart of the lumber furnished by the defendant did not preclude the plaintiff from the recovery of damages for defendant’s failure to perform its obligations under the contract. The defendant’s first and second prayers, both involve the question of the entirety of the contract and present in substance the converse of the legal principles asserted in the plaintiff’s second and fourth prayers.

In Brewster v. Frazier, 32 Md. 308, Judge Robinson said: “The question, whether a contract is entire or separable, is sometimes one of difficulty, and no precise rule can be laid down to embrace every case. Like most other questions of construction, it depends upon the intention of the parties, and this must be discovered in each case by considering the language employed and the subject matter of the contract. 2 Parsons on Contracts, 677.” In Md. Fertilizing Co. v. Lorentz, 44 Md. 234, the Court quoted with approval' the lan guage used in Watchman v. Crook, 5 G. & J. 254, where it was said: “The strong leaning of the Courts in modern times has been to disencumber themselves from the fetters of technical rules, and to give such a rational interpretation to the contract, as will carry the intention of the parties into full and complete operation.”

Putting ourselves as far as may be into the situation of the parties when this contract was entered into, we see that the business of the defendant was the purchase of lumber for sale to others, while that of the plaintiff was contracting for the building of the various structures into which lumber so largely enters.

The plaintiff did not agree to purchase this lumber for sale to others. He had no business place for its storage or deposit, no customers resorting to him to buy, and no salesmen skilled to secure such customers. He contracted for this lumber to be put by him into the tipple and sand house which he had come under a legal obligation to erect for the B. & O. R. R. within a prescribed time, and out of material suitable for those particular structures. It was to be used at a distant point — most of it in a structure requiring from its nature, extraordinary capacity for carrying weight, and corresponding strength and durability. He could not put into these structures such lumber as he might choose, but only such as should pass the inspection stipulated for in the specifications accompanying his order for this lumber, and every fact thus recited was known to the defendant as fully as to the plaintiff. Unless it measured up to the specifications, it was-of no practical value to the plaintiff for the only purpose for which it was ordered, and not being a dealer equipped for re-sale, it was of little value to him for any purpose. He was compelled, in order to perform his contract with the Railroad Company to purchase without delay other lumber to replace such as should be rejected under proper inspection. Can it be supposed then that it was the intention of either of the parties, that if one-half or one-quarter of the lumber passed the inspection, and the remainder was rejected, that the plaintiff could not use the former for the specific purpose for which it was bought, without being required to take also the rejected portion which he could not use? Such a conclusion is as irrational when attributed to the defendant as when attributed to the plaintiff under all the circumstances of this case. And this construction is supported by the subsequent dealing of the parties with respect to the rejected lumber, which was accepted and removed from Keyser by the defendant. It is true that this alone would not be conclusive, and it would have comparatively little significance if accompanied by a declaration that the acceptance of the rejected lumber was only for the purpose of reducing thereby the damage sustained, but when unexplained as in this case, the conduct is most significant of the intention of the parties. As illustrative of this view, it was said in Richards v. Shaw, 67 Ill. 222, that the modern rule is that the entirety of a contract of sale is severed by the buyers receiving and retaining a part after the seller has refused or failed to deliver the residue of the specific quantity- of goods bargained for.

‘ The case of Holmes v. Gregg, 66 N. H. 621, relied on by the plaintiff is directly in point, and meets with our full concurrence. That was a sale of lumber shipped on cars in five lots — three of which were accepted and used by the defendants, and the others not conforming to the order in quality, were rejected and piled in their yard where they remained subject to the plaintiff’s order. The defendants seasonably informed the plaintiffs of their action and tendered the price of the accepted lumber, and the Court said, “Without an express stipulation that the contract was or was not entire, the parties might have understood that is was severable in such a sense that the defendants could accept the lumber that conformed to the contract and reject the rest.”

This view was held by this Court in McCeney v. Duvall, 21 Md. 185. In that case McCeney purchased of Duvall for $3,450 three slaves under a warranty of their soundness. One of these proved to be unsound, and it was held that it was not necessary for the purchaser to° return, or offer to re turn, all of them on discovering the unsoundness of one of them.

We have examined the Massachusetts and Iowa cases, and the cases cited by the appellant from the Federal Reporters upon the entirety of contracts, but the facts of those cases differ so materially, except in' the Iowa case, from the case now before us that we do not think it necessary to discuss them. The Iowa case is offset by the New Hampshire case and we prefer to follow the latter. It follows that the plaintiff’s second and fourth prayers were properly granted and the defendant’s first and second prayers were properly rejected.

. The plaintiff’s sixth prayer asked that the jury be instructed there was no legally sufficient evidence in the case to show any prevailing custom affecting the rights ’ of the parties, and the defendant’s fourth prayer was based upon the theory that there was evidence of a custom the effect of which was to dis-entitle the plaintiff to recover.

' In Gibney v. Curtis, 61 Md. 201, this Court said, speaking of usage, ‘ Tt is never admissible where it is inconsistent with 'the terms of the contract, or the apparent intention of the parties." We have already said why we find that the clear intention of the parties was that it should be separable and no evidence of a custom or usage could render entire a contract which the parties intended to make separable, whether that intention is expressed in words or by clear implication from the circumstances and subject matter of the contract. The plaintiff's sixth prayer was therefore properly granted, and the defendant’s fourth prayer was properly refused.

The plaintiff’s seventh prayer on the measure of damages laid down the correct rule where the plaintiff in such a case is entitled to recover.

The defendant’s third prayer asks an instruction that if the lumber was inspected under a higher standard, of quality than that by which it was sold, or if the inspectors inspected it from their <. wn ideas of its fitness for the purposes for which it was to be used, and did not inspect it by'the specifications by which it was sold, then the inspection was not in accordance with the contract of sale, and their verdict must be for the defendant.

This proposition is so manifestly legally correct that we must suppose the learned Court considered the evidence insufficient to support the prayer, and therefore refused it, and we have carefully considered this view of the matter.

But the plaintiff’s own witnesses, whose testimony on that point we have already reviewed all made admissions which standingaloneand unexplained clearly tend to show that in making the inspection they did not confine themselves to the blue print specifications, which is the sole standard under the contract. It is true that at some point in their testimony, they all swore positively, in substance that the lumber did not measure up to the blue print specifications and was rejected for that reason alone, but Stottlemeyer who made the fullest inspection said as his last words “that the only part the blue print played in his examination was, to indicate to his mind for what purpose the lumber was to be used.”

But when witnesses are not consistent with themselves, the . whole of their testimony should go to the jury under proper instructions, for the judgment of the jury upon the contradictory or variant statements of the same witness. We are not able' to say that these variances are so light and inconclusive that no rational mind could draw the conclusion allowed under the prayer and believing this we are constrained to reverse the judgment that the jury may pass upon the weight of the testimony upon that question.

Judgment reversed with costs to the appellant above and below, and cause remanded for a new trial.