As the case reached the jury, no question of fact necessary to determine the legal effect of the correspondence between the parties relative to the defendants’ mistake in delivering peas in place of corn, remained unsettled. It was not for the jury to pass upon the meaning of the letters under these circumstances, but the question presented was one of law, and the duty to determine it rested solely upon the court. Jordan, Marsh & Co. v. Patterson, 67 Conn. 473, 479, 35 Atl. 521. The performance of this duty properly called for an instruction to the jury that the only contract 'in the case was that contained in the written order of March 23d, 1916, since that was the necessary legal conclusion from the conceded facts. The plaintiff’s letter complaining of the mistaken delivery of the peas does not purport to launch a new contract; it[*446] demands the fulfilment of an existing one. The subsequent delivery and acceptance of the corn were as clearly controlled by the conditions of the written order as were those items of it which had already been filled without mistake.
The defendants were entitled, therefore, to an instruction substantially as asked for. In legal effect this would, and should, have been equivalent to the direction of a verdict in their favor, since in the absence of any claim or suggestion of either fraud or negligence, the express exemption from liability contained in the contract is of controlling effect here, whether the corn actually delivered was Canada Field Corn, or some other variety. Leonard Seed Co. v. Crary Canning Co., 147 Wis. 166, 169, 132 N. W. 902.
Although the verdict of the jury was logically justified by the instructions, as these were wrong in a matter of vital importance to the result, it was none the less the legal duty of the court to set it aside if it was unwarranted upon the proper application of the law to the evidence. Brown v. New Haven Taxicab Co., 92 Conn. 252, 256, 102 Atl. 573.
There is error, the judgment is set aside and the cause remanded to be proceeded with according to law.
In this opinion the other judges concurred.