The opinion of the court was delivered by

It is insisted by the plaintiffs that, Mc-Manus Brothers having reserved the right to cancel the order and no time having been fixed by the contract within which this right should be exercised, they were bound to do so within a reasonable time. It is further urged that what constitutes a reasonable time in this case is a question of,law, and the court committed material error by submitting it to the jury.

It seems to be conceded that this is a question of law when the facts and circumstances surrounding the transaction are undisputed. But this concession does not remove the difficulty. When may it be said that the facts and circumstances surrounding a transaction are undisputed, so that the services of a jury may be dispensed with? It would seem from the general theory of jury trials that facts and circumstances from which different minds may draw different inferences should be submitted to a jury, that they may determine the *770conclusion bést warranted by the evidence. An agreed statement of facts might furnish such a condition. In this view it does not necessarily follow that the'testi,mony of witnesses which is not conflicting presents an undisputed state of facts which should not be submitted to a jury.

In this case the plaintiffs urge with great force that they manufacture the go'ods which they sell, and that the understanding was that the goods , in question were to be made up by them. The claim is also made that the greater part of the goods intended for the defendants was already manufactured when notice was received to cancel the order. There is no direct evidence that the goods ordered were different from those kept in stock by the plaintiffs, or that the goods made for this order would not fit other orders as well. There are, however, statements and correspondence between the parties from which such facts might be inferred. On the other hand, the evidence of the plaintiffs’ agent, hereinbefore given, justifies the inference that these goods were not of special design or quality, but were such as the plaintiffs manufactured in large quantities and kept constantly on hand with which to supply their customers generally. From this it may be easily inferred that the date when the order of cancelation was given would be unimportant, as no loss could be caused thereby except the loss of the sale. These different inferences, each justified by the facts and circumstances given, seem to present a jury question. This is the important, indeed the controlling, question in the case. If the inference that delay in canceling the order until a large part of the goods had been made up would cause the plaintiffs a material loss should prevail, it is manifest that a reasonable time under such circumstances would be shorter than if the delay would not have that effect. There are other circumstances in the case which might be used to sustain each of these inferences, but this is sufficient to indicate that the facts of this case are not “undisputed” in the sense in which that word is *771used where it has been said that what constitutes a reasonable time is a question of law where the facts are undisputed. (24 A. & E. Encycl. of L. 645, note 7.) In volume 23 of the American and English Encyclopaedia of Law, at pages 560 and 562, it is said:

“This power of the court to withdraw the case or particular questions of fact from the jury because the evidence is not conflicting should undoubtedly be exercised only in a very clear case, and in no case when the evidence is to any extent conflicting or when the evidence is such that 'different minds might honestly draw different conclusions therefrom.”

“It is well settled that it is only when the evidence leaves the material facts admitted or substantially undisputed, and only when these facts are such that reasonable men, in the exercise of an honest and impartial judgment, can fairly draw but one conclusion from them, that the court may properly withdraw the case from the jury. If the evidence relative to the material facts develops a substantial conflict, or from the admitted or established facts the unprejudiced minds of reasonable men may well draw different conclusions, it is the duty of the court to submit the issues to the jury.”

The last proposition is supported by abundant authorities cited by the author from both federal and state courts. We conclude that the district court did not err in submitting this question to the jury.

The verdict finds in effect that the right to cancel the order was exercised within a reasonable time., As this disposes of the case, the other questions discussed need not be considered. The judgment of the district court is affirmed.

(dissenting) : Presumably the amount of goods manufactured by the plaintiffs depended to some extent at least upon the amount of sales contracted for, and therefore the fact that some of the goods were of a kind used in the ordinary trade would not affect the question whether the order was canceled in reasonable time.

The jury found that the defendants knew when the *772order was given that the plaintiffs were to manufacture the goods for them. The order was given November 12, 1903, and the goods were to be manufactured in New York and shipped March 1, 1904. Of the 107 days intervening the defendants waited 70 days, or practically two-thirds of the time, before attempting to cancel the order. These facts are undisputed, and on them, I think, the court should declare as a matter of law that the cancelation was not within a reasonable time.”