¶1The petition avers, in substance, that by a contract between plaintiff, and defendants plaintiff agreed to deliver, and defendants agreed to accept, the following articles:— “about 500 huffhides, is — io^c; 2s — 9^jc; 1 calfskins 13c; 2s — iiyí; 1 kips 10J2C; 2s — 9c
¶2That the price was as indicated in the foregoing agreement; that plaintiff on a certain day, in accordance with the agreement, was able, ready and willing to deliver 69 No. 1, calf skins; 20 No. 2, calf skins; 13 No. 1 kips; 5 No. 2 kips; 158 No. 1, huffhides, and 200 No. 2 huffhides, but that defendants without cause refused to accept the same or any part thereof, to plaintiff’s damage in the sum of $106.02, for which he asks judgment. Defendants demur. Treating the alleged contract as one, several in its nature, without passing upon the point, the stipulations as to calf skins and kips violate the rule of certainty as to subject matter which is applicable to all contracts. There must be certainty as to the subí ect matter of the contract; in other words, the subject matter of the agreement must be expressed by the parties in such terms that it can be ascertained to a reasonable degree of certainty, — and in sales, or contracts to sell, the thing sold or to be sold, is a part of the element of the subject matter. And in agreements of the character of the one at bar, the obligation must be certain, or capable bf *405'being made certain, in regard to the quantity which the merchant agrees to sell, or the vendee agrees to buy. Ashcroft v. Butterworth, 136 Mass., 511 — at 514. No quantity is stipulated here; hence the vendee has not bound himself to accept any specified, nor has the vendor bound himself to deliver any quantity. As to the huffhides, passing the question .as to how they should be distributed and tendered as to No. i’s, and No. 2’s, the petition shows that altogether but 358 were offered. The contract calls for about 500. Under the rules laid down in Brawley v. Wright, 115 U. S., 188, and followed in 89 Fed., 907, the plaintiff was bound to tender 500 hides, or what would be substantially 500. The addition of the word “about’ is only “for the purpose of providing against accidental variations, arising from slight and unimportant excesses or •deficiencies in number, measure or weight.” See, Benjamin on Sales (7th Ed.) 713.
¶3The question as to “custom” made in plaintiff’s brief is not raised by the record; customs must be pleaded in order to be brought to the .attention, of the court.
¶4Demurrer sustained.