¶1 The first exception taken to the ruling of His Honor in excluding the evidence as to the amount of the debts paid by the defendant, as His Honor held, was immaterial, and cannot be sustained.
¶2 But we think His Honor committed an error in the construction of the mortgages upon the point of agency.
¶3 The mortgagor in the deed of April 27th, 1878, conveyed all his right, title and interest in the stock of goods and any of the goods that may be bought by him, from time to time, to replenish the stock, &c. The plaintiff -by accepting the deed assented to this provision. The plaintiff then assented to the mortgagor’s continuing the business, with the right to replenish the stock until the 15th November, 1878.
¶4 The right to replenish necessarily involved the right to sell. Replenish from the Latin words re “again,” andplenus “full,” means literally to fill again, to fill up. Nothing can be filled up that is already full. If the goods were to remain in the hands of the mortgagor, to be kept in statu quo until the 15th of November, there would be nothing to replenish. To replenish a thing necessarily implies exhaustion, reduction or diminution in the quantity of the commodity. There could have been no other mode of reduction in the quantity of these goods in the contemplation of the parties other than by a sale.
¶5 In common acceptation, when a merchant speaks of replenishing his stock of goods, it is understood that he means to fill up his stock that has been reduced by sales.
¶6 The consent then given by plaintiff to defendant to replenish the stock from time to time, gave him the right to sell, .and con *396 stituted him his agent for that purpose; and especially is this to be so considered, when the deed provides that the entire stock on hand on the 15th of November, including not only the original stock, but the stock as increased by new purchases, should belong to the mortgagee.
¶7 While our conclusion is there was error in the instruction given by His Honor to the jury upon the question of agency, we do not decide the question as to the extent of the agent’s authority; but as there was error, we do not know but that the misdirection of ITis Honor may have affected the cause of the defendants.
¶8 This opinion must therefore be certified to the superior court of Cleaveland county, that a venire de novo may be awarded.
¶9 Error. Venire de novo.