majority">Garnett, J.

The contract between appellant and appellee provided no method of ascertaining the cost of any part of the stock of goods. The phrase, “ and as agreed upon,” clearly refers to the estimate of §747.09 for show cases, etc., and nothing else. The appellee denies that any verbal agreement was made as to the manner of ascertaining the cost. When the dispute arose between them as to the cost of the cotton bats, Young insisted that he would go no further unless the original bills were produced, and as they were not produced he at once left the store, saying ho was done. He could not arbitrarily rescind the contract. The failure to specify in the agreement any particular mode of fixing upon the cost, did not warrant him in saying he would have the bills or abandon the trade. If he was entitled to any evidence of cost, certainly he could not demand that which was not in the power of Kendall to furnish. There was an implied undertaking on Kendall’s part to produce such evidence in his power as is usual between merchants in ascertaining the cost price of a stock of goods, and such as he could produce without unreasonable labor or delay, and his refusal to produce the same as to any substantial part of the goods, on request of Young, would have amounted to a breach of the contract on his part; but Young had no right to elect the character of evidence that would satisfy him and refuse to proceed unless it was presented. If lie wanted the benefit of a condition like that he should have had it inserted in the contract. He was a man of large experience in handling the goods he proposed to purchase, and may have intended to rely on his experience to save him from any overreaching in fixing the cost price. Whatever inference may be drawn from his failure to require such a stipulation, it is plain that the contract did not save to him the privilege of rescinding unless the original bills were produced. That he demanded, and that alone, he gave Kendall to understand, would satisfy him. He did not even request the production of any other evidence. The fourth instruction given by the plaintiff correctly told the jury that the plaintiff was not hound to accept as final the statement of the defendant as to the cost of the merchandise, but it erroneously told them that it was the duty of the defendant, on the request of the plaintiff, to furnish him with such evidence as merchants in the line of business of the defendant usually have of the cost of merchandise, or to furnish such other evidence of the cost as would be reasonable under the circumstances, as shown by the evidence, unless they believed that some method specified had been agreed on.

There was no proof to show what evidence such merchants usually have of cost prices, or what evidence of cost would have been reasonable under the circumstances.

The instruction was erroneous and the judgment of the court below is, for that reason, reversed and remanded.

Reversed and remanded„

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