The opinion of the court was delivered by

A great many witnesses were placed upon the stand, and a great deal of testimony was taken as to whether there was any difference between “prime crude cotton-seed oil” and “ prime crude cotton-seed oil of the season,” as to what that difference was, and whether the former quality of oil was better or worse than the latter. Among the witnesses examined were the two arbitrators and Lawler, the umpire.

Plaintiff attempted to elicit from Lawler as a witness his opinion as to whether the oil tendered was a good tender under the contracts, but defendant successfully objected to his answering questions directed to that end on the ground that that was matter for the court, and not the witness, to pass upon, but none the less we think his opinion pretty clearly appears from the evidence actually received.

He said, among other things: “The difference, (between the two classifications of oils) is this: prime crude cotton-seed oil is made from seed in the early part of the season while the seed is nice and fresh. You can store away a thousand barrels of such oil in tanks and put it on the market in March, and you can take oil that is made from good sound seed and you will ñnd that there is a difference in the oils, both in color, taste, odor and refining properties in favor of the oil of the early months of the year- — -the first oil made.

The following questions and answers followed:

*784Q. A contract is made for oil on the 10th of January for oil delivered the last of January and the early part of February, the oil to be made under that contract and to be delivered on that contract, I ask you if an oil of that kind with good color, with proper smell, proper taste and with light settlings would be accepted under a contract for prime crude oil?

A. Well, I consider oil prime whether it has got settlings in it or not.

Q,. It is prime?

A. Yes, sir.

Q. In other words there is settlings in all oils?

A. An oil may be prime and good, but it may not be well settled.

Q. What I want to get is this: Here is a contract made on January 10 for prime crude oil delivered in the latter part of January and in the early part of February; now I want to know from you whether or not such oil, oil as you examined, whether or not that oil should have been receivable under that contract? ”

(Defendant’s counsel objected as above stated.)

Q,. This is your decision, Mr. Lawler, which I now hand you?

A. Yes, sir.

Q,. Now I want to know precisely what you mean — I can nob determine from that whether you determined that oil could be delivered under the contract or not?

(Defendant’s counsel objected to any statement of the witness that the oil is receivable under the contract, because the contract speaks for itself, and on the ground that if there is anything ambiguous in the contract it should be considered against the vendor.)

By the Witness: What I mean by “crude cotton-seed oil of the season,” when I mentioned those two samples taken from those two cars, I mean that it was oil that was perfect in every respect, and as good oil as could be made out of sound seed, at that time, properly handled.

By the Court: Do you mean that it was as good as prime crude cotton-seed oil?

A. It was not as good as oil that could be made out of seed during the months of October, November and December.

Q. Was it such oil as the people interested in the contract would call for?

A. I have never seen the contract.

*785Q. Well, the contract calls for prime cotton-seed oil on the 10th day of January, deliverable in the latter part of January and the first part of February. Here is the contract — I will read it to you. (Counsel reads the contract.)

A. This oil, if I remember aright, had a good deal of light set-tlings in it.

Q. That is your opinion?

A. No, sir; not my opinion merely. I should have considered it good delivery, but as the oil was not well settled — the contract not saying anything about well-settled oil — it is between the buyer and vendor to settle this matter.

Q. In other words, you did not decide whether it was a good delivery or not?

A. No, sir; I am not able to on account of the settlings.

Lapeyre, the refiner of the defendant, upon the stand as a witness, being asked the question whether there was a difference in the trade between “ prime crude cotton-seed oil” and “ prime crude cottonseed oil of the season ” answered, “ Well, there is only one quality of prime crude cotton-seed oil as I said properly manipulated and you can only get it at one season of the year, but those articles generally sell on their merits.”

From the testimony which we have copied and from that of others, it appears to us that “prime crude cotton-seed oil,” in the strict sense of the word, could not be manufactured as late as the middle of January or the beginning of February, and that any oil (no matter how well made nor from what kind of seed) made as late as that would fall under the term “ prime crude cotton-seed oil of the season,” but an examination of the contracts will show that in the contemplation of the parties thereto that the oil contracted for should be thereafter manufactured by the selling company at their mill and be delivered as made; if so the article with respect to which they were contracting was necessarily the hind of article which could be manufactured at that late time by the seller. The terms employed can not be held to have been used with reference to an oil already in existence. We think this view of matters determinative of the rights of the parties in so far as the designation of the article contracted for is concerned.

Lawler says of the oil tendered: “It is oil that was perfect in every respect, and as good oil as could be made out of sound seed at that time properly handled.”

*786We think the ease is with the plaintiff. We do not think the set-tlings spoken of by the witnesses affected to any extent the quality of theoih It was shown that all oils have them more or less, and we do not think it had more settlings than might have been reasonably anticipated by the parties.

We are of the opinion that the judgment is erroneous, for the reasons herein assigned.

It is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and. reversed, and it is now ordered, adjudged and decreed that the plaintiffs, the Standard Cotton Seed Oil Company, do have and recover judgment against the defendant, the Excelsior Refining Company, for the full sum of four thousand and forty-two dollars and fourteen cents, with legal interest from judicial demand and costs in both courts.