(e) Zachrisson v. Poppe, 3 Bosw. 171.

(f) Saunderson v. Jackson, 2 B. & P. 238'; Schneider v. Norris, 2 M. & Sel. 286, per Ld. Eldon, C J. And see Board-man v. Spooner, 13 Allen, 353; Brayley v. Kelley, 25 Minn. 160.

(g) Grant v. Fletcher, 5 B. & C. 436; Herman v. Neale, 2 Camp. 337; Gregson v. Ruck, 4 A. & E. (N. S.) 737; Sieve-wright v. Archibald, 17 A. & E. (n. s.) 104. In this case the broker's bought note specified "500 tons of Dunlop, Wilson & Co. pig iron," and the Bold note, " 500 tons of Scotch pig iron," and there was no signed entry in the broker's book. There was evidence that Dunlop's iron was of Scotch manufacture, hut that there were other kinds of Scotch pig iron; and the court held, that the variation in the notes was material, and destroyed the contract. Peltier v, Collins, 3 Wend. 4.V.I; Suydam v. Clark, 2 Sandf. 133. In this case the sale note sent to the vendor stated a sale of a quantity of flour, consisting of two different brands, at different prices for each, and that the flour of one brand was to be delivered when it arrived, but not later than three days from the date of sale; nothing was said therein as to the time for delivery of the other brand. The bought note, sent to the purchaser, varied from the other in representing that the whole quantity was to be delivered on arrival, nor later than three days. The purchaser received a portion of the flour within the time limited, but could not obtain the rest in season, and was obliged to purchase elsewhere to meet his wants. He therefore declined to receive that which arrived out of season, and the vendor Bold on his account at less than the contract price, and sued him for the difference. The defendant obtained a nonsuit on the ground that the bought and sold notes did not constitute a contract, within the statute of frauds, by reason of the variance. Upon the hearing before the full court the ruling of the court below was sustained Pitts v. Beckett, 13 M. & W. 743 " If the broker omit a material term in drawing up the contract, a party who has not recognized or adopted the contract as drawn up, will not he bound." and had not respectively agreed to buy and sell the same thing, there was no contract subsisting between them. (h)

So an invoice of flour, described in a bought note to be of a particular brand, which proved upon landing to be of a different brand, was rightfully refused by the purchaser, the court deciding that the word "Haxall," written in the margin of the note by the broker, was a warranty that the flour sold should be of that brand. (i) A statement in a bought note that the broker has sold the purchaser " seed to arrive," where the purchaser accepts it after arrival and an opportunity offered him to examine it, implies no warranty that the article is merchantable; and the purchaser has no remedy against the seller, should it subsequently prove to be unmerchantable. (j) In this case the contract was executed. But where the contract is executory, such a statement is regarded as an engagement that the goods are merchantable; and if they prove not to be so upon arrival, the purchaser will be released. (k) But an unimportant or immaterial variation in the notes will not avoid the bargain. Thus, where a purchaser's bought note specified the day for payment, with discount off, as did also the copy of the sold note furnished him by the broker upon the same paper, but the vendor's sold note did not specify the day for such payment with discount, though a copy of the bought note on the same sheet of paper did so specify; and the purchaser, when sued for the non-fulfilment of the contract, pleaded this variance, the court held, that the mention of the day in the copy of the bought note contained on the same sheet with the sold note, must be taken to apply equally to the sold as to the bought note, and that the two corresponded sufficiently to sustain the contract. (l)

A mistake made by the broker, by describing erroneously the firm of the vendors, in the bought and sold notes, will not justify the purchaser in avoiding the contract, after he has treated it as a subsisting contract, upon a subsequent communication from the vendors, unless he show that he has been prejudiced. (m)

The non-delivery of one of the notes to the party entitled to receive it, so that he is ignorant of the contract, might possibly destroy the contract, on the ground of want of mutuality of obligation. (n) A delivery by the broker of an invoice altered from

(h) Thornton v. Kempster, 5 Taunt. 786.

(0 Flint v Lyon, 4 Cal. 17.

(j) Moore v. McKinlay, 5 Cal. 471.

(k) Cleu v. McPherson, 1 Bosw. 480.

(/) Maclean v. Dunn, 4 Bing. 722; s. c. 1 M &P. 761, 779.

(m) Mitchell v Lapage, Holt, N. P. 253.

(n) Per Best, C. J., in Smith v. Sparthe name of one purchaser to that of the new purchaser, accompanied by a letter to the latter, saying that to simplify the transaction they had transferred to him the invoice received by the vendor, will be effective to establish a valid contract. (o) And it is sufficient, in an action by a purchaser against a vendor, on a contract made through a broker, for the plaintiff to produce the bought note handed to him by the broker, and show the employment of the latter by the vendor. (p) Where the sold note varies from the bought note, it lies on the vendor to prove the variance by producing the former. (q) It is held in New York, that where no sale note is delivered by the broker, his entry on his book must agree with the contract as actually concluded, or neither party is bound. (r) Parol evidence of * mercantile usage is admissible to explain apparent variances between bought and sold notes;(s) but it is questionable whether such evidence is admissible to explain their meaning, where there is an actual discrepancy between them. (t) The true office of mercantile usage is to interpret the otherwise indeterminate intentions of parties, and to ascertain the nature and extent of their contracts, arising not from express stipulation, but from mere implications and presumptions, and acts of a doubtful or equivocal character; or to ascertain the true meaning of particular words in an instrument, when those words have various senses. (u)