Swift & Co. v. Hafleigh & Co. ( 1917 )

Opinion by

Kephart, J.,

Plaintiff sold to the defendant its “entire 1914 production rejected manufacturing bones.” Defendant received and paid for two hundred and twenty tons during eleven months of the contract. On the last month sixty-five tons were shipped, which defendant refused for the rea- • son that the contract of sale contained a clause which limited the quantity of the rejected manufacturing bones it was required to take. This clause read: “Production estimated to be fifteen to twenty tons per month.” Defendant claims the maximum that it could be held for was twenty tons per month, and it was not compelled to take any beyond that amount. The bones refused were sold by the plaintiff in the open market and a loss was sustained of «1553.50. Our inquiry is directed to the meaning and effect of this clause. Webster’s dictionary defines “estimate” as “an approximate judgment or opinion as to weight, magnitude, cost and the like; a calculation without measuring or weighing.” Similar definitions are given by other lexicographers. “As a verb, to judge and form an opinion of the value, from imperfect data; to fix the worth of roughly, or in a general way; to form an opinion of, as to amount, number, etc., ......to make an estimate of; to calculate roughly”: 16 Cyc. 670.

Ho doubt the sense in which the word is used and the idea intended to be expressed by its use may be determined from the instrument, and such meaning may be different from the accepted meaning of the word. There is nothing in this contract to vary its ordinary meaning. The contract was to purchase all the rejected manufacturing bones. The subsequent provision in no way limited that contract. It was merely instructive as to the probable purchase and output, which might be more or less than the quantity mentioned. To hold that it fixes the maximum quantity would be to give to the words the effect of an actual computation instead of an approximate calculation.

If the plaintiff did not sell in the most advantageous market, the defendant should have so stated in its affidavit, and a positive statement of sale in the open market is not denied by an averment that the defendant does not know the market price.

The judgment is affirmed.