Beck, J.
(After stating the foregoing facts.) Paragraph 1 of the contract relates to the sale of walnuts classified as “Number 1 soft-shell grade.” No walnuts of this grade were ordered. No part of that paragraph qualified the portions of the contract contained in paragraph 2 or paragraph 3; and we can not agree with the contention that paragraph 2 of the contract should be read in the light of paragraph 1. There is nothing in the wording of paragraph 2 or paragraph 3 which makes the construction of the terms of either of these paragraphs depend upon the interpretation of the terms of the other; but on the other hand, if we make the expression contained in paragraph 1, “All sales are based on estimate of the season’s crop for the Number 1 soft-shell'grade,” apply to the next two paragraphs, the contract becomes unintelligible. Counsel for the defendant in error advances the suggestion that paragraph 2 should be construed together with paragraph 1, and that thus construed the contract means that “at the time when disposing of the crop of 1907 shipments were made of No. 1 soft-shell, at that time, defendant in error had the right to ship all or any part of orders on hand for grades falling under proviso No. 2.” This construction is not sound; because in paragraph 2 stipulations are made which authorize the seller to fill orders for the grades referred to in paragraph 2 independently of any of the stipulations which are contained in paragraph 1, it being expressly provided in paragraph 2 that “all orders for Number 1 hard-shell, Number 2 hard-shell, and Number 2 soft-shell walnuts are conditional and to be accepted provided available at the time the Number 1 soft-shell variety is shipped.” Under this1 proviso it was declared that the seller was not bound to ship any part of the order falling under the grades mentioned -in paragraph 2 of the contract, unless -they were “available at the time the Number 1 soft-shell variety is shipped.” And the reference in paragraph 2 *414to “the time the Number 1 soft-shell variety is shipped” does not have the effect of making the stipulations in paragraph 1 in reference to the last-mentioned grade in any way qualify the stipulations in the other paragraphs pertaining to any other grades. The only effect of the proviso in paragraph 3 was to give the seller the privilege of substituting as much as 10 per cent, of the Number 2 soft-shell grade in any other grade order; and it did not bind him to do that or anything else. If there is to be found any binding obligation under this so-called contract upon the seller, it is to he found in “paragraph 2.” Under the stipulations in paragraph 2, that “it is understood that all orders for Number 1 hard-shell, Number 2 hard-shell, and Number 2 soft-shell walnuts are conditional and to he accepted provided available at the time the Number 1 soft-shell variety is shipped,” either the seller had the privilege and option, in the first place, of shipping the entire amount of each grade ordered or of not making any shipment at all, or, in the second place, the stipulation quoted meant that if the grades ordered were “available,” the seller was hound to" fill the order. But whether the first or the second construction is placed upon this paragraph of the contract, and in that paragraph is embraced all of the grades ordered, the seller could not, under the first construction, by shipping a part of the order, supply the consideration so as to give the contract the element of mutuality which was wanting at the time of its execution, if the contract meant that it was absolutely in the power of the seller to ship or not, he being the judge of whether the grades mentioned were available ■ or not. Or, if the second construction is placed upon it, that the seller was bound to ship if available, still we do not think that he could, by a partial shipment, fulfill his obligation under the contract. If the walnuts were available, he was bound to fill the order as given; if not available, then he was not bound; and if he attempted to fulfill his obligations under the contract by sending less than the entire order, the purchaser was not bound to receive it. Consequently, it appearing that the seller had shipped and offered to deliver only a part of the quantity of walnuts ordered, he was not entitled, upon a refusal by the purchaser to accept his partial filling of the order, to recover.
Judgment reversed.
All the Justices concur.