Gaveney and another vs. Gates. for fifty cents per thousand, when they had actually sold these shingles at a dollar per thousand, the defendant, if compelled to receive for them the price at which under such or any circumstances the plaintiffs might have supplied themselves with such shingles, might justly complain. In both of these cases these shingles would be submitted to the uncertain and contradictory evidence of quality and comparative and market value, which would very likely work injustice to one or the other of the parties. But it is sufficient that there is nothing in the contract of the parties. as determined by their correspondence, that would lead to any such unfair presumption. Every circumstance and condition of things about this transaction of barter or exchange of flour for shingles repels any such presumption. The price of the flour was fixed and undisputed, and bills thereof rendered. But as to the shingles, no price was fixed or ever claimed by the parties, and the shingles were consigned to the plaintiffs at their place and market, distant from that of the defendant as consignor; and about the market value of shingles at that place the plaintiffs may be presumed to have had superior knowledge, and would have had the better judgment, and yet they made no certain offer of any price they were willing to pay, and never said a single word. about market value or the price at which they could have supplied themselves with the same article. On the other hand, they were all the time consistent in saying to the defendant: "Send the shingles and we will sell them." "We will try and sell yours all the time." "After realizing our freights, we will credit you with sales," etc., and other similar statements. This made a certain criterion of adjustment, and one perfectly fair and equitable to both parties. The circumstances confirm what would appear to be the clear and indisputable terms of the contract. It is significant that the plaintiffs allege in their complaint “that the defendant voluntarily shipped to them the shingles, to be Gaveney and another vs. Gates. disposed of by them and credited to him at twenty cents per thousand." We have occupied so much space, and perhaps too much and unnecessarily, in order to ascertain what the contract between the parties in relation to the shingles really was, as that is the only question in the case. The learned judge before whom the case was tried, instructed the jury as follows: "There is no dispute what they agreed to. The agreement was that the plaintiffs should allow the defendant for the shingles what they thought they could afford to." "They are to pay what they can afford to pay, or, which amounts to the same thing, whatever they could get the same class of shingles for elsewhere and get them delivered at Independence." "I think that is the only question for you to determine,- is what they could have supplied themselves with the same grade of shingles for from other places." The learned judge, probably from memory, slightly misquotes an expression in one of the defendant's letters in support of the above instructions. There is language something similar in one of his letters, but following the language, "and about the shingles, do the best you can out of them and that is all I want," and that letter is an answer to one from the plaintiffs saying that "after realizing our freights we will credit you with sales." The plaintiffs never assented to any other terms than to account for sales of the shingles. Any expressions in the defendant's letters which have been made the subject of argument as showing the consignment or delivery of the shingles on any other terms, are easily explained by the fact that the plaintiffs were all the time troubled about what they could get for the shingles, and complained of the lowness of the market for such shingles, evidently in order to satisfy the defendant if they should be compelled to sell the shingles for less than one dollar a thousand and freight, the price which the defendant was insisting they ought to bring; and the defend Gaveney and another vs. Gates. ant repeated, "do the best you can." "I don't want any more;" and claimed that the shingles which were selling for less than one dollar per thousand were of inferior quality to his, and that he did not want any more than shingles of the same quality as his shingles could be purchased for in that market, and that price he encouraged the plaintiffs to think they would be able to obtain in proper time, and he was willing that they should have all the time they wanted to sell them in, even two years. One Lockway, a witness for the defendant, was asked: "Do you know what Gaveney & Comstock sold these particular shingles for at Independence that year?" (two or three years before.) This question was objected to by the plaintiffs' counsel, and the objection sustained. One of the plaintiffs, Comstock, on cross-examination as a witness, was asked by the defendant's counsel: "What did you sell these No. 1 shingles for in the month of October, 1883,— how much a thousand?" The objection of the plaintiffs' counsel to this question was sustained. "Did you sell these same No. 1 shingles in Trempealeau county, Independence, for $1.60 a thousand?" "Will you state to the jury how much you realized from the sales of these 355,000 shingles shipped to you by J. L. Gates in September and October, 1883, over and above the cost of freight and other expenses. in handling and disposing of them?" These two questions were asked, with the same ruling. It may be as well to say here that we think that, according to the terms of the agreement, the last question asked forms the basis of the proper adjustment of the defendant's claim for the shingles and the correct criterion of determining the amount. These rulings of the court in respect to the evidence, and the above instruction to the jury, make clear the view of the circuit court as to what was deemed the correct construction of the contract, and we think they were clearly and radically erroneous. Gaveney and another vs. Gates. The testimony on the trial, in respect to the market value of No. 1 shingles, and the quality of the defendant's shingles in fact, and in comparison with the shingles of other persons at Independence and elsewhere, was, as might have been anticipated, in wide and irreconcilable conflict and contradiction. The jury were left to spell, if not to guess, out a just verdict from such uncertain evidence, by such an uncertain criterion. In such a case an approximation to a just verdict would be a matter of mere chance, when the contract has furnished the only certain, fair, and reasonable basis for the adjustment of the defendant's claim and the plaintiffs' liability. The plaintiffs have sold all of the shingles for cash at some price, no matter what if the sale was fair and honest, and the most just and reasonable thing for them to do is to account for such sales, deduct the freight and their expenses, and credit the balance on the flour. Why not? This, at least, would be carrying out the contract as we understand it, and this they should do. Besides the errors above considered, the circuit court erred in allowing the following questions to be asked by the plaintiffs' counsel of one of the plaintiffs as a witness, against the objection of the defendant's counsel: "Tell the jury what you could have purchased, from other sources, No. 1 shingles that would have sold for the same price," etc. "What amount can you reasonably afford to credit to Mr. Gates on account of these shingles? How much per thousand?" "State what you could afford to pay, and how you arrive at it." The first question involves the necessity of ascertaining the price at which the shingles were sold as "the same price" mentioned therein, when all evidence as to the price at which they were sold was excluded. The witness answered that "he could have got them delivered at Independence for 75 cents a thousand, free of all charges," and that "75 cents a thousand is the Ramsay vs. Hommel. highest amount we could afford to allow Mr. Gates," etc.. The court instructed the jury that the plaintiff's were to pay what they could afford to pay, and "what they thought" they could afford to pay, and that such was the contract. The witness stated what they thought they could afford to pay, and so the case was foreclosed; and the jury might take that as the rate, and they probably did, and deducted the freight from the 75 cents per thousand, and found that that was all the plaintiffs could afford to pay. What they could afford to pay was what they sold the shingles for, deducting freight and expenses, and this was what the circuit court should have ruled. We have given more space to the consideration of this case on account of the importance of the question involved, and out of deference to the candid and able counsel of the respondents and to the learned judge before whom the case was tried, who honestly entertained a different view of the contract than the one above expressed. By the Court. The judgment of the circuit court is reversed, and the cause remanded for a new trial. RAMSAY, Respondent, vs. HOMMEL, Appellant. December 21, 1886 — January 11, 1887. Tax titles: Proof of publishing and posting notice of sale: Limitation of actions. 1. An affidavit of the publisher of a newspaper, made May 7, 1880, that the notice of a tax sale "was published in said newspaper for the period of five weeks, commencing on the 9th day of April, 1880," does not show that it was published once in each week for four successive weeks, as required by sec. 1130, R. S. 2. An affidavit of the posting of the notice of a tax sale in four specified places, "the same being four public places in the village of |