WALKER, Circuit Judge
(after stating the facts as above). In behalf of the York Company it was contended that its telegram of November 27th to Feagin, “You are authorized to sign City Ice Company contract in our name,” had reference to such a 100-ton ice plant as had been the subject of previous negotiations, and did not confer on him authority to bind the York Company by such a contract as the instrument signed evidences. The rulings complained of resulted from the conclusion .reached by the court that under the evidence adduced it was open to the jury to find that the words “sign City Ice Company contract” had reference only to a contract for a 100-ton plant, with means of keeping at freezing temperature 100,000 cubic feet of storage space, as contemplated in preceding negotiations, and that the telegram did not authorize Feagin to bind the York Company to a contract which gave the Ice Company the option to take either a 110-ton plant or a 55-ton plant. The nature and scope of Feagin’s agency, as it existed before the just-mentioned telegram was sent, were disclosed by undisputed evidence. It was shown by uncontroverted testimony that Feagin was the duly authorized representative of the Southern Construction & Supply Company, upon which the York Company, by written instrument, had conferred authority “to solicit orders for the machinery and apparatus which is manufactured, sold, or handled by the principal, and to submit the same to the principal for acceptance.” Before the sending of the telegram of November 27th, Feagin, as the representative of his immediate principal, was authorized to solicit and submit to the York Company for its acceptance such an order for machinery as the contract sued on embodies, whether such an order had or had not been the subject of previous negotiations. It seems that such a telegram as that of No[473]*473vember 27th, sent to one already having the authority just mentioned, had the effect of so enlarging that authority as to make it one to solicit and accept in behalf of the York Company such an order as the instrument signed embodied, whereas before the authority possessed by the addressee of the telegram did not extend beyond soliciting such an order and submitting it to the York Company for acceptance, and that the evidence was such as not to leave it open to find otherwise. The fact that the agent kept in touch with and consulted the principal while the negotiations were in progress does not indicate that prior to the sending of the telegram of November 27th the former did not, as to his dealings with the Ice Company, have the authority conferred by the agency contract. It was against the interest of both agent and principal for the former’s efforts to result in obtaining an order which the latter would not accept.
But it may be assumed, without being admitted, that when Feagin went to Mobile he was clothed only with authority to negotiate for the sale of such machinery as the Ice Company had indicated a desire to buy — a 100-ton ice plant and incident means of maintaining 100,000 cubic feet of storage room at or below a freezing temperature. It is contended that that authority was exceeded when the agent undertook to bind the principal to furnish a 110-ton ice-making plant. The uncontradicted testimony showed that the ice-making plant called for by the contract, when operated as and under the conditions therein specified, makes, not 110 tons, but 98 tons, of ice per day. That testimony further showed that that plant would make more or less than 98 tons of ice a day according as the ammonia air compressor is run at a speed of more or less than 68 revolutions per minute, the other stated conditions being the same, and that it is entirely practicable to increase or diminish within a considerable range the number of revolutions per minute above or below the number mentioned in the contract, the product per day being substantially three-fourths of a ton more or less than 49 tons for each revolution in addition to or less than 68, the other stated conditions being the same. It seems that it cannot with any propriety be said that a machine does not answer a call for a 100-ton one when it is equally capable of being so operated as to produce that amount, or more or less than that amount, per day, according as part of it is speeded up or slowed down within entirely practicable limits; and that an agent’s sale of such a machine, which, when operated at a speed and under conditions specified in the contract of sale, makes slightly less than 100 tons of ice per day, cannot properly be said to be beyond the scope of an agency to sell a 100-ton machine because the contract contains a warranty that the machine when so operated will make 110 tons of ice a day, or substantially more than in fact it will make when so operated. Such a sale is not of a thing other than the one the agent was authorized to sell, whether the warranty does or does not subject the seller to liability for a breach of it.
Based on the provisions as to capacity to maintain a freezing temperature in storage room having 100,000 feet capacity, and as to the cans to be furnished having a capacity to make blocks of ice weigh[474]*474ing 440 pounds, contained in the instrument signed by Feagin, it was contended in behalf of the York Company that the ice-making machinery called for was guaranteed to have a capacity of even more than 110 tons per day, and that Feagin exceeded the authority conferred on him in undertaking to bind the York Company by such provisions.. If the provision as to the capacity of what was called for to maintain a freezing temperature in the storage space mentioned had the effect of guaranteeing additional ice-making capacity, yet such a provision must have been in the contemplation of the York Company from the beginning, as the Ice Company’s written request for bids called for bids on “two refrigerating machines, each of which will have a capacity of 50 tons of ice per 24 hours, and additional capacity to maintain a temperature of 28 degrees F. in storage room having 100,000 C. F. capacity.” From the fact that the cans to be furnished were to have a capacity to make blocks of ice weighing about 440 pounds it does not follow that the above-quoted guaranty of- the ice-making capacity of the freezing system can be given a meaning different from the one expressed by its language. The language of the provisions, taken together, cannot be given the effect of guaranteeing an ice-making capacity of more than 110 tons of ice per day of 24 hours. The guaranty clause in question says each ton “to contain five blocks.” It does not say th’át each block shall be more than a fifth of a ton. The average weight of five units together making a ton is one-fifth of a ton. A fifth of a ton or less of ice may be made in a can having a capacity to make more than that amount. Ice-making capacity of more than 110 tons is not called for by a guaranty of a capacity of only 110 tons.
Even if the authority originally conferred on Feagin was limited to negotiating for the sale of a 100-ton ice-making plant, the correspondence between him and the York Company, after the former reached Mobile, unequivocally shows that the latter, while the negotiations were in progress, recognized that Feagin was empowered tp make changes, omissions or additions required by the Ice Company, to give guaranties, and to stipulate for special apparatus not included in any specifications or bid previously submitted.
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WALKER, Circuit Judge
(after stating the facts as above). In behalf of the York Company it was contended that its telegram of November 27th to Feagin, “You are authorized to sign City Ice Company contract in our name,” had reference to such a 100-ton ice plant as had been the subject of previous negotiations, and did not confer on him authority to bind the York Company by such a contract as the instrument signed evidences. The rulings complained of resulted from the conclusion .reached by the court that under the evidence adduced it was open to the jury to find that the words “sign City Ice Company contract” had reference only to a contract for a 100-ton plant, with means of keeping at freezing temperature 100,000 cubic feet of storage space, as contemplated in preceding negotiations, and that the telegram did not authorize Feagin to bind the York Company to a contract which gave the Ice Company the option to take either a 110-ton plant or a 55-ton plant. The nature and scope of Feagin’s agency, as it existed before the just-mentioned telegram was sent, were disclosed by undisputed evidence. It was shown by uncontroverted testimony that Feagin was the duly authorized representative of the Southern Construction & Supply Company, upon which the York Company, by written instrument, had conferred authority “to solicit orders for the machinery and apparatus which is manufactured, sold, or handled by the principal, and to submit the same to the principal for acceptance.” Before the sending of the telegram of November 27th, Feagin, as the representative of his immediate principal, was authorized to solicit and submit to the York Company for its acceptance such an order for machinery as the contract sued on embodies, whether such an order had or had not been the subject of previous negotiations. It seems that such a telegram as that of No[473]*473vember 27th, sent to one already having the authority just mentioned, had the effect of so enlarging that authority as to make it one to solicit and accept in behalf of the York Company such an order as the instrument signed embodied, whereas before the authority possessed by the addressee of the telegram did not extend beyond soliciting such an order and submitting it to the York Company for acceptance, and that the evidence was such as not to leave it open to find otherwise. The fact that the agent kept in touch with and consulted the principal while the negotiations were in progress does not indicate that prior to the sending of the telegram of November 27th the former did not, as to his dealings with the Ice Company, have the authority conferred by the agency contract. It was against the interest of both agent and principal for the former’s efforts to result in obtaining an order which the latter would not accept.
But it may be assumed, without being admitted, that when Feagin went to Mobile he was clothed only with authority to negotiate for the sale of such machinery as the Ice Company had indicated a desire to buy — a 100-ton ice plant and incident means of maintaining 100,000 cubic feet of storage room at or below a freezing temperature. It is contended that that authority was exceeded when the agent undertook to bind the principal to furnish a 110-ton ice-making plant. The uncontradicted testimony showed that the ice-making plant called for by the contract, when operated as and under the conditions therein specified, makes, not 110 tons, but 98 tons, of ice per day. That testimony further showed that that plant would make more or less than 98 tons of ice a day according as the ammonia air compressor is run at a speed of more or less than 68 revolutions per minute, the other stated conditions being the same, and that it is entirely practicable to increase or diminish within a considerable range the number of revolutions per minute above or below the number mentioned in the contract, the product per day being substantially three-fourths of a ton more or less than 49 tons for each revolution in addition to or less than 68, the other stated conditions being the same. It seems that it cannot with any propriety be said that a machine does not answer a call for a 100-ton one when it is equally capable of being so operated as to produce that amount, or more or less than that amount, per day, according as part of it is speeded up or slowed down within entirely practicable limits; and that an agent’s sale of such a machine, which, when operated at a speed and under conditions specified in the contract of sale, makes slightly less than 100 tons of ice per day, cannot properly be said to be beyond the scope of an agency to sell a 100-ton machine because the contract contains a warranty that the machine when so operated will make 110 tons of ice a day, or substantially more than in fact it will make when so operated. Such a sale is not of a thing other than the one the agent was authorized to sell, whether the warranty does or does not subject the seller to liability for a breach of it.
Based on the provisions as to capacity to maintain a freezing temperature in storage room having 100,000 feet capacity, and as to the cans to be furnished having a capacity to make blocks of ice weigh[474]*474ing 440 pounds, contained in the instrument signed by Feagin, it was contended in behalf of the York Company that the ice-making machinery called for was guaranteed to have a capacity of even more than 110 tons per day, and that Feagin exceeded the authority conferred on him in undertaking to bind the York Company by such provisions.. If the provision as to the capacity of what was called for to maintain a freezing temperature in the storage space mentioned had the effect of guaranteeing additional ice-making capacity, yet such a provision must have been in the contemplation of the York Company from the beginning, as the Ice Company’s written request for bids called for bids on “two refrigerating machines, each of which will have a capacity of 50 tons of ice per 24 hours, and additional capacity to maintain a temperature of 28 degrees F. in storage room having 100,000 C. F. capacity.” From the fact that the cans to be furnished were to have a capacity to make blocks of ice weighing about 440 pounds it does not follow that the above-quoted guaranty of- the ice-making capacity of the freezing system can be given a meaning different from the one expressed by its language. The language of the provisions, taken together, cannot be given the effect of guaranteeing an ice-making capacity of more than 110 tons of ice per day of 24 hours. The guaranty clause in question says each ton “to contain five blocks.” It does not say th’át each block shall be more than a fifth of a ton. The average weight of five units together making a ton is one-fifth of a ton. A fifth of a ton or less of ice may be made in a can having a capacity to make more than that amount. Ice-making capacity of more than 110 tons is not called for by a guaranty of a capacity of only 110 tons.
Even if the authority originally conferred on Feagin was limited to negotiating for the sale of a 100-ton ice-making plant, the correspondence between him and the York Company, after the former reached Mobile, unequivocally shows that the latter, while the negotiations were in progress, recognized that Feagin was empowered tp make changes, omissions or additions required by the Ice Company, to give guaranties, and to stipulate for special apparatus not included in any specifications or bid previously submitted. That the “full authority” explicitly mentioned in the York Company’s telegram of November 25th was not intended to be limited to negotiations for an order for a 100-ton plant is shown by its telegram of the day before in reply to the one of Feagin inquiring, “Will you consider splitting contract with Vilter, each taking complete fifty ton?” The York Company’s statement, made in its reply, “Do' not care to split contract with Vilter unless we can get good price for plant,” is inconsistent with the existence of an intention on its part to limit Feagin’s authority to negotiating for an order for a 100-ton plant, and shows that it contemplated the possibility of the negotiation resulting in Feagin getting an order for an ice-making machine having a capacity of substantially less than 100 tons a day. In view of that correspondence and the attending circumstances, the York Company’s telegram of November 27th, “You are authorized to sign City Ice Company contract in our name,” must be regarded as empowering Feagin [475]*475to bind the York Company by a contract for whatever he previously had been authorized to obtain an order for.
The conclusion is that the uncontradicted evidence — written instruments and correspondence to which the York Company was a party and undisputed oral testimony — shows that Feagin was authorized to bind the York Company by the contract sued on. The existence of such contract and a breach of it being so shown, the Ice Company was entitled to have the jury instructed to find a verdict in its favor. The court erred in refusing the plaintiff’s request for an instruction to that effect. Because of that error, the judgment is reversed.