(after stating the facts). Because plaintiff conceded the right of defendant to refuse the fruit if it was not of the class or grade “reject nines,” we need consider only whether, the agreement of June 12, 1901, being in force, he might also refuse the fruit if it was not “cargo run.” Some effect must be given to the contract for the particular car of fruit and to the understanding of the parties to be gathered from the terms employed. The order was, in any event, for mailboat rejects or “reject nines.” As given, it asked also for select stock. The reply was that the sellers would not select fruit for any one, and that, if defendant wished the fruit, he must take “regular cargo run.”' Upon these terms, the fruit was sold. It is clear that the term “ cargo run ” does not mean the same as average of the cargo or imply that the fruit placed in a particular car will be as good as that placed in some other car. This is made plain when it is considered how the fruit is loaded and unloaded. It is taken on board at various ports and placed according to grade in various compartments. A compartment filled with “nines” might receive fruit from many different ports. It is unloaded, evidently, in the inverse order of loading, and carried directly to cars, or, if then unfit for shipment, thrown upon the dock. Full and heavy bunches of fruit are graded precisely as lighter and leaner bunches *156are graded; the bunches vary considerably in weight, and the greater weight may result from maturity of the fruit. The term “cargo run” is not significant of quality, condition, or class of fruit. In this contract, it had no meaning other than taking the fruit of the grade or class ordered as it came from the vessel, with such inspection as was given the fruit, generally, at the dock. If the condition or quality of the fruit was not satisfactory to the buyer, and the agreement of June 12, 1901, was in force, he was bound to accept the fruit if it was of the grade or class ordered, pay for it, and submit a claim. The court was, therefore, in error in ruling otherwise.

We have examined the contention of appellant which relates to the subject of the abrogation of the agreement of June 12, 1901. It is the claim of plaintiff' that it was not in any way abrogated or superseded. It is a further claim that, if it was, by filing on July 26, 1903, a claim for allowance for bad fruit which he had accepted and paid for, 'defendant waived the provisions of any new or other agreement and by his conduct indicated and led plaintiff to believe that the parties were dealing with reference to the earlier arrangement. The court was requested to charge that, by putting in this claim, defendant waived any new or other arrangement. The court properly refused to so charge the jury. It cannot be said, as matter of law, that the parties were dealing under one rather than another arrangement. It can be said that the agreement of June 12, 1901, is conclusively established, and that, as late as July, 1903, the conduct of plaintiff and of defendant was in conformity therewith; that, under the circumstances, it was to be considered as in force for the entire period, and in August, 1903, unless defendant made the contrary to appear.

Nor, if the subject shall again be considered, can it be said, as matter of law, there was no testimony tending to prove that the fruit delivered to defendant was not “cargo run.” The fact that the bananas sent to the other dealer weighed more than those sent to defendant would not, *157standing alone, warrant submitting the question to the jury. But this considerable difference in the weight of the fruit is significant when considered with other of the testimony. If defendant and his witnesses are to be believed, the fruit sent defendant was in every way inferior to that sent to the other dealer. If it was not fruit properly classed as “ reject nines,” the difference is accounted for, and the matter disposed of. If both cars were properly graded as “ rejects,” the testimony, some of it, if believed, supports the inference that the other car was filled with selected fruit.

Other errors assigned are not likely to arise upon a néw trial. The judgment is reversed, and a new trial ordered.

The bill of exceptions appears to be, substantially, a copy of the stenographer’s minutes of the trial, and the printed record contains 394 pages. Counsel for defendant consented to its settlement, and the trial judge certified that, where the testimony is set out by questions and answers, such course was necessary to a full understanding of the questions of law. The questions of law could have been properly presented with a record of 100 pages, and the costs of appellant will be taxed upon the basis of such a record.