Page:North Dakota Reports (vol. 48).pdf/699

 ly telegraphed to the defendant to the effect that the contract did not show manure dockage; that the plaintiffs would not allow any manure dockage; that the defendant should wire him what he should do. The: defendant replied, “Leave the hides and take first train home.” In accordance with some evidence adduced by the plaintiffs, which was denied by evidence of the defendant, the plaintiffs then told the representative that they wanted him to take the hides; that they would give him all the manure dockage he wanted; that the representative replied to this offer that he did not want these hides even if they allowed him any dockage he wanted. Immediately, on that day, the plaintiffs then served upon the representative the summons in this action. The representative left without receiving the hides. The defendant subsequently appeared in the action, and the plaintiffs served a complaint to recover damages for the failure to receive such hides pursuant to the contract.

Much evidence was introduced by the parties concerning the meaning of the contract, merchantable condition of hides, the operation of banking, the meaning of 2 per cent. tare, and the custom of the trade for allowance of dockage for manure. Plaintiff's testimony is to the general effect that no dockage for manure was deductible excepting the 2 per cent. tare mentioned in the contract. The defendant’s testimony is to the general effect that the 2 per cent. tare is the allowance provided for shrinkage in transportation, and that the custom of the trade is to deduct dockage for manure was where it exists upon hides submitted. One of the plaintiffs testified that he had been in the hide business for some nine years; that the market price of hides is determined by the price at Chicago less freight; that he had not been in Chicago during that year; that they kept posted on the market price of hides through a publishing company which sent reports and telegrams to them when the market dropped; that just prior to the time when the representative came they had received a telegram from this publishing company, and on May 20th they received another telegram; that the market price of hides on May 18, 1920, was 12 cents; that the telegrams referred to the price of hides on a particular date; that they were in code and addressed to them; that he based his information upon the market price pursuant to this publishing company’s reports and its telegrams. He further testified that he had one of these telegrams and could get the other from the telegraph office. The telegrams were not produced and were not offered in evidence. He otherwise testified that when he was in Min-