A. L. HERREN v. M. M. GAINES.

A contract in these words : “We have sold to Messrs. W. & D. all the ginseng we have on hand and shall collect this season or fall, amounting to from five to eight thousand pounds, as near as we can estimate, including all we can get,” binds the seller to deliver nopartmdar quantity, hut only so ■much as is on band, and may be gathered in.

Injunction, transferred, upon bill and demurrer, from Spring Term 1868, of tbe Court of Equity for Haywood.

The bill alleged that in the summer oí 1865 the complainant and defendant formed a partnership for merchandizing, and particularly for dealing in ginseng in the counties of Haywood, Jackson and Macon. In October 1865 the defendant contracted on behalf of the firm to sell a certain firm in ■Baltimore “all the ginseng we have on hand and shall • collect this season or fall [amounting to from five to eight •.thousand pounds as near as we can estimate, including all -we shall get,J at the rate of 68 cents per pound for prime dried •.and crude, and 78 cents per pound for prime strained and clarified,” and the Baltimore parties advanced thereupon $1,740. Some time after the defendant informed complainant of the sale, and the latter was displeased because the prices were below the market rates; thereupon the defendant remarked that he had gotten an advantage of the young men with whom he had traded — that no definite amount of ginseng was contracted for, and the contract could be met by returning the money advanced, and the delivery of what ginseng was on hand. At the same time the defendant proposed to dissolve the partnership, and after some negotiation the plaintiff bought his interest, and gave him therefor two notes, for $760.40 in all. Since then judgment has been taken upon these notes, and defendant threatens to ■ collect them by execution. ’ At the time of his purchase from the defendant the plaintiff did not know that the latter had bargained to the firm in Baltimore any specific amount of ginseng, — the defendant told him that he had not so contracted, &nd in the copy of the contract, which the defendant furnished *73to him at that time, the words aboye included in brackets were purposely omitted. The plaintiff did not see the original contract until he visited Baltimore, and then the parties there obliged him to perform the contract to the minimum of ■the same, which required 3,500 pounds more than the firm had On hand — the market price being from $1.00 to $1.05 per pound, so that he lost by the operation $945, &c.

The preliminary injunction having been awarded, at the rreturn term the defendant put in a general demurrer, which was set down for argument, and the cause transferred to this -court.

Merrimon, for the plaintiff.

Phillips & Battle, contra.

Reade, J.

The case turns upon the construction of the following contract:

“We have sold to Messrs. W. and D. all the ginseng we have on hand and shall collect this season or Fall, amounting to from five to eight thousand pounds, as near as we can estimate, including all we shall get.”

For the plaintiff it is insisted that at least five thousand ■pounds must be delivered. For the defendant it is insisted that no particular quantity must be delivered, but only so much as was on hand and might be gathered in. Our opinion is with the defendant.

In Guillem v. Daniel, 2. M. & Ros. 61, the contract was to deliver “ all the naphtha that the defendant might make from 1st day of June nest, for and during the term of two years, say from 1,000 to 1,200 gallons per month.”

The defendant, instead of delivering 10,000 in ten months, which was the minimum amount mentioned, delivered but 3,000, which was all he made. For the plaintiff it was insisted that the defendant was bound to deliver at least 1,000 gallons per month. For the defendant it was insisted that he was not bound to deliver any particular quantity, but only as much as he made. And the court was of opinion with the defend-mnt. Lord Abinger, C. B., said: “I construe it in favor of the *74defendants as meaning merely that in all probability the quantity of naphtha produced will amount to 1,000 or 1,200 gallons.” And so the contract in reality was this: “ I undertake to sell you all the naphtha that I may make in my works-during the next two years.”

In the case of Leeming v. Snaith, 16 Ad. & E., 71 E. C. L. R. 278, the contract was that the defendant sold to plaintiff' “ what he may pull, say not less than 100 packs of combing-skin.” “ Combing-skin ” is a kind of wool, and the defendant was a puller, or preparer for sale, of the article. He delivered a small quantity, but did not deliver 100 packs. In this case the court cited the case of Guillem v. Daniel, supra, and approved it, but distinguished this case from it by reason of the words “ not less than 100 packs,” which made it necessary that the defendant should deliver 100 packs.

In the case before us the substance of the contract evidently was, that all the ginseng on hand, and all that might, be gathered during the season, whether much or little, should be delivered, and “ amounting to from five to eight thousand pounds, as near as we can estimate,” were words of mere-expectation, indicating not what was obliged to be delivered,, but what was expected to be delivered.

If therefore in construing the original contract the words? “ amounting to from five to eight thousand pounds, as near as we can estimate, ” amount to nothing, and may be treated as? surplusage, the leaving these words out of the copy sent by the defendant to the plaintiff was no fraud upon him.

The plaintiff's supposed equity, being based upon this: alleged fraud of the defendant, fails.

The injunction will be dissolved, the demurrer sustained,, and the bill dismissed with costs.

Per Curiam. Bill dismissed.