'CALDWELL, Circuit Judge,
after stating the case as above, delivered the opinion of the court.
The gravamen of the complaint was that the plaintiff, in compliance with the contract, manufactured a large quantity of cartons, and shipped them to the defendant, “but tbe defendant, in utter disregard of its contract and tbe terms and conditions thereof, refused to receive” them. The answer denied that the cartons complied with the contract, and averred that they “were absolutely worthless,” and could not be used; and that the defendant offered to return them, and the plaintiff refused to receive them, whereupon the defendant notified the plaintiff they were in its storehouse, subject to the plaintiffs order. In a word, the plaintiff claimed the cartons shipped complied with the contract, and that the defendant was bound to retain and pay for them. On the other hand, the defendant claimed they did not comply with the contract, and that it was not bound to retain and pay for them. This was the sharply-defined issue, — the storm center in the ease. When the plaintiff insisted the cartons complied with the contract, and declared it would not receive them back, tbe defendant: was justified, if they did not comply with the contract, in storing them as it did, subject to tbe plaintiff’s order. The defendant: was not required to ship the cartons back to the plaintiff in the face of its declaration that it would not receive them. Moreover, the contract did not require the defendant to return a shipment of boxes, the whole or greater part of which were defective. And, if the plaintiff claimed the shipment of cartons complied with the contract, and a large part of them were defective, and fell below the contract standard, the defendant bad a right to cancel the contract, and store the cartons subject to the plaintiff’s order. When it was developed that there was an irreconcilable difference between the parties as to the quality of cartons called for by tbe contract, it would have been a vain thing for the plaintiff to make and ship cartons which the defendant would not receive. There was then nothing left for the parties to do but to appeal to a court for a judicial determination of the question whether the cartons shipped complied with the contract, [598]*598and were such as the defendant ought to have received. Each party staked its case upon this issue, and the plaintiff lost. This, as well as all other issues of fact, are foreclosed by the verdict of the jury.
But it is earnestly contended'by the learned counsel for the plaintiff in error that the court erred in its interpretation of this clause of the contract, namely:
“It is our intention to supply you witli sueli goods that you will have no cause to complain of. In case, however, you should receive some that are not up to samples herewith attached, you to return same to us, and we will replace them.”
The court told the jury that:
“This sentence obligates the defendant company to return to the plaintiff company such cartons, and it then becomes the plaintiff company’s right and duty and obligation to replace them with other ones; that is, in case some of the goods sent are not up to the samples attached. It becomes necessary, then, to decide upon what is meant by the word ‘some.’ Suppose every box or carton of the 54,000 which were delivered had been defective, would there be on the defendant the duty to return the entire shipment to plaintiff, that it might replace all of said shipment? Manifestly, if one, or merely a few, were defective, instead of the entire amount, or if there should be ten, or fifteen, or fifty defective, it would be the duty of the defendant to return them to the plaintiff, so that they might be replaced. But suppose, as is contended by the defendant, although denied by the plaintiff, that nearly all, or by far the larger amount, of the 54,000 are defective, is the defendant bound to return them to the plaintiff? How far is this to be applied? As I understand the term ‘some,’ it does not mean all, or substantially all. If I have your permission to take some apples from a basket, you would not expect to learn that I had taken all, or substantially all, of them. I might take one out of the basket, and you would not ordinarily understand it to be some (yet it might be accepted as being some); but, if I were to take a half dozen, I certainly would have taken some. To what, in ordinary language, the term ‘some’ will apply or will not apply, and what its commonly accepted meaning is, I will not undertake to accurately define to you. You, gentlemen, are familiar with the language used in ordinary everyday life, and I can only say to you, in my judgment, that the word ‘some,’ as used in this case, does not mean all, or practically all, substantially all, but means a much lesser portion. I shall not undertake to define specifically the portion. If there were cartons — some cartons — not up to the samples as furnished by the plaintiff, it would be the duty of the defendant to return them to the plaintiff at St. Louis, and the duty then would be upon the plaintiff to replace them; but, if the number of defective cartons manifestly went so far beyond that it was not properly within the commonly accepted meaning of the term ‘some,’ it was not the duty then of the defendant to return them for replacement, because that did not come within its obligation on that point.”
The plaintiff preferred a request for the following instruction:
. “Under that contract, plaintiff was to construct five million paper boxes, called ‘cartons,’ of a certain quality and size, at prices stipulated in the contract. If there were any defects found, the contract required the defendant to return them to St. Louis, and plaintiff was required to replace them by cartons not defective.” . .
Exception was taken to the giving of that part ,of the charge of the court above set out, and to the refusal of the court to charge as requested.
■The word “some” in the connection in which it is used in this contract means a small or inconsiderable number. The definition of the word in the Century Dictionary is: “A certain indefinite or indeterminate quantity or part of; more or less; often so used as to denote [599]*599a small quantify or deficiency.” It is in this latter sense that it is used in this contract. The definition in Worcester’s Dictionary is: “Denoting a certain but indeterminate number of, more or less as to number;” and this definition is supported and illustrated by a text from the Rook: "And when he sowed, some seeds fell by the wayside, and the fowls came and devoured them.” Matt. xiii. 4. As uspd in this contract, “some” must receive the same relative definition that the words "about” or "more or less” receive in commercial contracts where the engagement is to furnish "about” a given number or quantity of articles, or to furnish a given number or quantify of articles "'more or less.” It is well settled that the addition of the qualifying words "about,” “more or less,” and the like, in such contracts, "is only for the purpose of providing against accidental variations arising from slight and unimportant excesses or deficiencies in number, measure, or weight.” Brawley v. U. S., 96 U. S. 168, 171, 172, 24 L. Ed. 622; Norrington v. Wright, 115 U. S. 188, 204, 6 Sup. Ct. 12, 29 L. Ed. 366; U. S. v. Pine River Logging & Improvement Co., 61 U. S. App. 69, 80, 32 C. C. A. 406, 89 Fed. 907. In Norrington v.
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'CALDWELL, Circuit Judge,
after stating the case as above, delivered the opinion of the court.
The gravamen of the complaint was that the plaintiff, in compliance with the contract, manufactured a large quantity of cartons, and shipped them to the defendant, “but tbe defendant, in utter disregard of its contract and tbe terms and conditions thereof, refused to receive” them. The answer denied that the cartons complied with the contract, and averred that they “were absolutely worthless,” and could not be used; and that the defendant offered to return them, and the plaintiff refused to receive them, whereupon the defendant notified the plaintiff they were in its storehouse, subject to the plaintiffs order. In a word, the plaintiff claimed the cartons shipped complied with the contract, and that the defendant was bound to retain and pay for them. On the other hand, the defendant claimed they did not comply with the contract, and that it was not bound to retain and pay for them. This was the sharply-defined issue, — the storm center in the ease. When the plaintiff insisted the cartons complied with the contract, and declared it would not receive them back, tbe defendant: was justified, if they did not comply with the contract, in storing them as it did, subject to tbe plaintiff’s order. The defendant: was not required to ship the cartons back to the plaintiff in the face of its declaration that it would not receive them. Moreover, the contract did not require the defendant to return a shipment of boxes, the whole or greater part of which were defective. And, if the plaintiff claimed the shipment of cartons complied with the contract, and a large part of them were defective, and fell below the contract standard, the defendant bad a right to cancel the contract, and store the cartons subject to the plaintiff’s order. When it was developed that there was an irreconcilable difference between the parties as to the quality of cartons called for by tbe contract, it would have been a vain thing for the plaintiff to make and ship cartons which the defendant would not receive. There was then nothing left for the parties to do but to appeal to a court for a judicial determination of the question whether the cartons shipped complied with the contract, [598]*598and were such as the defendant ought to have received. Each party staked its case upon this issue, and the plaintiff lost. This, as well as all other issues of fact, are foreclosed by the verdict of the jury.
But it is earnestly contended'by the learned counsel for the plaintiff in error that the court erred in its interpretation of this clause of the contract, namely:
“It is our intention to supply you witli sueli goods that you will have no cause to complain of. In case, however, you should receive some that are not up to samples herewith attached, you to return same to us, and we will replace them.”
The court told the jury that:
“This sentence obligates the defendant company to return to the plaintiff company such cartons, and it then becomes the plaintiff company’s right and duty and obligation to replace them with other ones; that is, in case some of the goods sent are not up to the samples attached. It becomes necessary, then, to decide upon what is meant by the word ‘some.’ Suppose every box or carton of the 54,000 which were delivered had been defective, would there be on the defendant the duty to return the entire shipment to plaintiff, that it might replace all of said shipment? Manifestly, if one, or merely a few, were defective, instead of the entire amount, or if there should be ten, or fifteen, or fifty defective, it would be the duty of the defendant to return them to the plaintiff, so that they might be replaced. But suppose, as is contended by the defendant, although denied by the plaintiff, that nearly all, or by far the larger amount, of the 54,000 are defective, is the defendant bound to return them to the plaintiff? How far is this to be applied? As I understand the term ‘some,’ it does not mean all, or substantially all. If I have your permission to take some apples from a basket, you would not expect to learn that I had taken all, or substantially all, of them. I might take one out of the basket, and you would not ordinarily understand it to be some (yet it might be accepted as being some); but, if I were to take a half dozen, I certainly would have taken some. To what, in ordinary language, the term ‘some’ will apply or will not apply, and what its commonly accepted meaning is, I will not undertake to accurately define to you. You, gentlemen, are familiar with the language used in ordinary everyday life, and I can only say to you, in my judgment, that the word ‘some,’ as used in this case, does not mean all, or practically all, substantially all, but means a much lesser portion. I shall not undertake to define specifically the portion. If there were cartons — some cartons — not up to the samples as furnished by the plaintiff, it would be the duty of the defendant to return them to the plaintiff at St. Louis, and the duty then would be upon the plaintiff to replace them; but, if the number of defective cartons manifestly went so far beyond that it was not properly within the commonly accepted meaning of the term ‘some,’ it was not the duty then of the defendant to return them for replacement, because that did not come within its obligation on that point.”
The plaintiff preferred a request for the following instruction:
. “Under that contract, plaintiff was to construct five million paper boxes, called ‘cartons,’ of a certain quality and size, at prices stipulated in the contract. If there were any defects found, the contract required the defendant to return them to St. Louis, and plaintiff was required to replace them by cartons not defective.” . .
Exception was taken to the giving of that part ,of the charge of the court above set out, and to the refusal of the court to charge as requested.
■The word “some” in the connection in which it is used in this contract means a small or inconsiderable number. The definition of the word in the Century Dictionary is: “A certain indefinite or indeterminate quantity or part of; more or less; often so used as to denote [599]*599a small quantify or deficiency.” It is in this latter sense that it is used in this contract. The definition in Worcester’s Dictionary is: “Denoting a certain but indeterminate number of, more or less as to number;” and this definition is supported and illustrated by a text from the Rook: "And when he sowed, some seeds fell by the wayside, and the fowls came and devoured them.” Matt. xiii. 4. As uspd in this contract, “some” must receive the same relative definition that the words "about” or "more or less” receive in commercial contracts where the engagement is to furnish "about” a given number or quantity of articles, or to furnish a given number or quantify of articles "'more or less.” It is well settled that the addition of the qualifying words "about,” “more or less,” and the like, in such contracts, "is only for the purpose of providing against accidental variations arising from slight and unimportant excesses or deficiencies in number, measure, or weight.” Brawley v. U. S., 96 U. S. 168, 171, 172, 24 L. Ed. 622; Norrington v. Wright, 115 U. S. 188, 204, 6 Sup. Ct. 12, 29 L. Ed. 366; U. S. v. Pine River Logging & Improvement Co., 61 U. S. App. 69, 80, 32 C. C. A. 406, 89 Fed. 907. In Norrington v. Wright, supra, the contract was for the shipment of iron “at the rate of about 1,000 tons per month, beginning February, 1880, but whole contract to be shipped before August 1, 1880,” and the court said:
“These words are not satisfied ]>y shipping one-sixth part o£ the 5,000 tons, or about 8-‘i3 tons, in each of the six months which begin with February and end with July. But. they require about 1,000 tons to be shipped in each of the five months from February to June, inclusive, and allow no more than slight and unimportant deficiencies in the shipment during those months to bo made lip in the month of July.”
The court: did not err in its instruction to the jury, or in refusing the plaintiff's request. The latter was too general and indefinite to be any guide to the jury, and, as we have seen, did not express the correct rule. The contract did not contemplate the return of an entire shipment of cartons numbering many thousands, and still less so when the plaintiff was asserting that all of the carious were such as the contract called for, and the defendant was asserting that all of them were defective. Standing in this attitude towards each other, Hie contract was necessarily terminated. The defendant took the hazard of supporting its contention that the boxes were not up to the sample. It chanced it, and won on that issue before the jury.
The court, over the objection of the plaintiff, permitted witnesses who worked in the defendant’s starch factory, and were familiar with the construction and use of starch cartons, to compare the cartons shipped by the plaintiff with the sample attached to the contract, and point out to the jury the differences and various alleged defects and imperfections in the plaintiff’s cartons. There was no error in this ruling of the court, especially so in view of the fact that the witnesses were familiar with the construction and use of cartons. The cartons produced and compared wi th the sample were a part of those shipped by the plaintiff to the defendant, and which had been stored in defendant’s cellar from the date of their receipt by the defendant, and it was objected that they had in that time undergone a change for the worse, and (hat the comparison was unfair for that reason.. Whether [600]*600the cartons had or had not undergone a change was a question of fact for the consideration of the jury to be determined upon a considera» tion of the evidence. The judgment of the circuit court is affirmed.