#### THOMAS McNEELY vs. ARCHIBALD G. CARTER.

W here a contract was made for the sale of a lot of cotton, in which it was agreed as follows: “The price to be fixed on in the following manner — The seller is to select either Fayetteville, Cheraw, or Camden, and to name a lime, and the prices are to be regulated by the prices at the named market, and time — the price to be the same as good crops of cotton sell for at the time. The price to be fixed upon by the 1st of June next:” It was held that by a just construction of the contract the seller was to name beforehand a market and a day by which the price was to be regulated, and that he could not, on the last day allowed him, name a market and a preceding day for that purpose.

This was an action of assumpsit for money had and received for amount overpaid in the purchase of a lot of cotton. The defendant pleaded the general issue, and the only question in the case arose upon the construction of the following agreement, to wit:

“A. G. Carter agrees to sell his crop of cotton to Thomas McNeely, and to deliver the same picked and unpacked at McNeely’s factory; and McNeely agrees to pay Carter one thousand dollars down, and the balance in three, six and nine months, equal payments, with interest from the time the cotton shall be delivered. The price .of the cotton to be fixed on in the following manner: said Carter is to select either Fayetteville, Cheraw or Camden, and to name a time; and the prices are to be regulated by the Drices at the named market and time. The price to be the same as good crops of cotton sell for at the time- — and fifty cents to be deducted for hauling per hundred pounds in all cases. The price to be fixed upon by the 1st June next. This 25th January, 1837.

(Signed) THOMAS McNEELY,

A. G. CARTER.”

It appeared upon the trial at Davie, on the last circuit, before his Honor Judge Se'ttlp., that a part of the cotton was delivered on the day the agreement was made, and one thousand dollars was then paid; and the balance of the cotton was delivered between that time and the 26th of April following: That on the 31st of May ensuing the defendant no-*142tilled the plaintiff that he selected Camden as the place, and the 31st day of January preceding as the time, by which the price of the cotton should be regulated. The plaintiff cont[lat according1 to the true construction of the agreement, the defendant had no right, on the 31st of May, to go back to the 31st day of January preceding, as the day that should regulate the price of the cott'on.

His Honor instructed the jury “that the defendant had a right to go back to any day after the contract was entered into, and claim the price for which cotton was selling in Camden on that.day.” The jury returned a verdict for the defendant, and the plaintiff appealed.

Badger for the plaintiff.

Gaston, Judge.

It must be admitted that the contract to be expounded has not been expressed in very perspicuous language, nor can we be sure that any exposition which may be given of it will be free from error. But in our judgment, the meaning assigned to it in the court below is not the correct one, c'

According to that interpretation, the contract substantially is to allow the highest price which cotton may bear at either of the three named markets on any day between the execution of the contract and the first of June therealter. Now an obvious — and very strong — objection to this interpretation is, that had the parties so meant, nothing was easier or more natural than to have said so. It can scarcely be conceived, that if this had been the object of the bargain, so roundabout a mode of declaring their meaning, or of providing for the execution of it, would have been resorted to.

The next objection to this interpretation is, that it makes the bargain unequal, which, in the absence of plain stipulations to that purpose, it will not be presumed to be. If the defendant, in selecting a day and a market for fixing the price of the cotton can act retrospectively, he must gain, and the plaintiff must lose, by the selection. Of course he will name the day and the place when and where the price was highest.

Finally; we think this advantage on the part of the de*143fendant cannot fairly be inferred from the language of the instrument. All is fixed by the contract at the time of its execution, except the price; and the language used in regard to this, seems altogether prospective in its character. “ The price to be fixed in the following manner.” “ The said Carter is to select either Fayetteville, Cheraw or Camden, and to name a time, and the prices are to be regulated by the prices at the named market and time.”' “ The. price to be the same as good crops of cotton sell for at the time.” The just inference from this seems to be, that Mr. Carter was to name beforehand a market anda day by which the price was to be regulated.

Entertaining this opinion, we hold that the jury was misdirected, and that there ought to be a new trial. The judgment therefore must be reversed, and a venire de novo awarded.

Per Curiam. Judgment reversed.