Where the goods are to be delivered when the buyer gives notice of his readiness to receive them, or gives shipping directions, the buyer is bound to act within a reasonable time and his failure to do so will exonerate the seller from the necessity of doing that, e. g., shipping the goods, which was to be done when the buyer had so acted.1 did he ever notify the defendant that cars were at the station ready to receive the lumber, nor was there any demand by the plaintiff on the defendant to deliver the lumber. Under these circumstances the plaintiff is not entitled to damages." Kunkle v. Mitchell, 56 Pa. St. 100. To same effect: Hocking v. Hamilton, 158 Pa. St. 107, 27 Atl. R. 836. See also Robison v. Tyson, 46 Pa. St. 286. F. O. B.-Where the goods are to be delivered "free on board” the buyer's vessel, the seller is under no obligation to act until the buyer names or supplies the vessel. Armitage v. Insole, 14 Q. B. 728; Wackerbarth v. Masson, 3 Camp. 270; Sutherland v. Allhusen, 14 L. T. (N. S.) 666; Walton v. Black, 5 Del. 149; Dwight v. Eckert, 117 Pa. St. 490, 12 Atl. R. 32. So, where the buyer had the option of demanding the chattels (hogs) between the 10th and 20th of November, the court said, respecting the rights and obligations of each, that if the buyer intended to comply with his contract, "it was his duty to have given his vendor reasonable notice on which of the days he would receive them. His failure to do that fixed the last day as the one on which the hogs should be delivered, and gave to the vendor the unconditional right to require of his vendee to perform his contract on that day. If then he was not bound to be ready to deliver the hogs on each and every day between the days prescribed, he was bound to be ready at his own residence on the last-named day; and to enable him to maintain an action on the contract he should have averred a readiness and willingness to deliver the one hundred head of hogs of the description designated in the contract at his residence on the 20th of November, 1870, and that ap pellant failed to attend to receive them (Chandler v. Robertson, 9 Dana, 291)." Sousely v. Burns (1873), 10 Bush (Ky.), 87. In Graham v. Van Diemen's Land Co. (1855), 11 Exch. 101, 30 Eng. L & Eq. 574, Maule, J., said "that reasonable time will not begin to run until some one interested in the matter calls for something to be done respecting it." Approved in Cameron v. Wells (1858), 30 Vt. 633. 1 Louisville, etc. Ry. Co. v. Diamond State Iron Co. (1888), 126 III. 294, 18 N. E. R. 735; Sanborn v. Benedict (1875), 78 Ill. 309. In Kingman & Co. v. Hanna Wagon Co. (1898), 176 IIL 545, 52 N. E. R. 328, the defendant agreed to purchase fifteen hundred wagons from plaintiff, to be delivered "as ordered in monthly instalments. Defendant did not order as many as the contract called for. Held, that the plaintiff was not under obligation to make a tender of the wagons in order to maintain an action for non-acceptance. § 1131. riod. Agreement to deliver during indefinite pe Where the contract is to supply goods during a period not fixed, the court will not construe it as of unending duration, but, if not terminable at will, it will at least not continue for more than a reasonable time.1 § 1132. Reasonable time, how determined.- What is a reasonable time in these cases is usually a question of fact to be determined by the jury in view of all the circumstances of the case; but where the facts are not in dispute, or the mat 2 1 Echols v. New Orleans, etc. R. Co. (1876), 52 Miss. 610 [citing Cocker v. Franklin Mfg. Co., 3 Sumn. 530; Atwood v. Cobb, 16 Pick. (Mass.) 227, 26 Am. Dec. 657; Palmer v. Vanderberg, 3 Wend. (N. Y.) 193; McLees v. Hale, 10 Wend. 426; Knowlton v. Newell, 10 Allen (Mass.), 34; Butler v. Smith, 35 Miss. 457; Kirkland v. Carr, 35 Miss. 584]. See also Warren v. Wheeler, 8 Metc. (Mass.) 97; Hill v. Hill, 113 Mass. 103, 18 Am. R. 455; Williams v. Hart, 116 Mass. 513. Where the goods were to be delivered as the buyer required, it was held that, while a reasonable time was implied, yet, if the buyer did not ask for any goods within a reasonable time, the seller must ask if he meant to do so before the seller could deem the contract at an end. Said Alderson, B.: "So soon as a reasonable time elapsed it was competent for the defendant [the seller] to say, 'I desire you to ask me to deliver the iron now or never.'" Pollock, C. B., said: "The defendant reads the contract as if the condition which the law implies were part of it. No doubt. where a contract is silent as to time, the law implies that it is to be performed within a reasonable time; but there is another maxim of law, viz., that every reasonable condition is also implied; and it seems to me reasonable that the party who seeks to put an end to the contract because the other party has not, within a reasonable time, required him to deliver the goods, should in the first instance inquire of the latter whether he means to have them." Jones v. Gibbon (1853), 8 Exch. 920, 22 L. J. R. (N. S.) Ex. 347, 20 Eng. L. & Eq. 559 (the two latter reports differ from the first in language). 2 Ellis v. Thompson, 3 M. & W. 445; American Extract Co. v. Ryan (1894), 104 Ala. 267, 15 S. R. 807; White v. Pease (1897), 15 Utah, 170, 49 Pac. R. 416 [citing Everett v. Taylor, 14 Utah, 242; Farr v. Swigart. 13 Utah, 150; Dubois v. Spinks (Cal.), 46 Pac. R. 95; Hill v. Hobart, 16 Me. 164]; Derosia v. Winona, etc. R. Co. (1872), 18 Minn. 133; Pinney v. Railroad Co. (1872), 19 Minn. 251; Walden v. Murdock (1863), 23 Cal. 540, 83 Am. Dec. 135; Woods v. Miller (1880), 55 lowa, 168, 39 Am. R. 170. In Pinney v. Railroad Co., supra, it is said: "Whether the question of reasonable time is one of fact for the jury or law for the court must depend upon the circumstances of each ter can be ascertained from the language of the contract, it may be determined by the court as a matter of law.1 § 1133. ———. If the contract rests wholly in parol, then the question of reasonable time depends, like the other elements of the contract, upon the parol evidence; but where the contract is in writing but is silent as to the time, then the law supplies the omission by implying a reasonable time; and though the facts may be shown as bearing upon the construction, the contemporaneous agreements of the parties are not admis sible.2 particular case. If, from the facts found, or undisputed, in a particular case, the court can draw the conclusion as to whether the time is reasonable or not, by the application of any legal rules or principles, the question is one of law. But if the circumstances be numerous and complicated, and such as to exclude the application of any general principle or definite rule of law, it is necessarily one of mere fact to be determined by the jury." 1 In Wright v. Bank of the Metropolis (1888), 110 N. Y. 237, 18 N. E. R. 79, 1 L. R. A. 289, 6 Am. St. R. 356, Mechem's Cas. on Damages, 469, it is said: "What is a reasonable time when the facts are undisputed and different inferences cannot reasonably be drawn from the same facts is a question of law. See Colt v. Owens, 90 N. Y. 368; Hedges v. Hudson Riv. R. Co., 49 N. Y. 223." Accord: Aymar v. Beers (1827), 7 Cow. (N. Y.) 705, 17 Am. Dec. 538; Gilmore v. Wilbur (1831), 12 Pick. (Mass.) 120, 22 Am. Dec. 410; Morse v. Bellows (1835), 7 N. H. 549, 28 Am. Dec. 372; Howe v. Huntington (1839), 15 Me. 350; Greene v. Dingley (1844), 24 Me. 131; Echols v. Railroad Co. (1876), 52 Miss. 610. 2 In Ellis v. Thompson (1838), 3 Mees. & Wels. 445, it was said by Alderson, B.: "This was a contract for delivery of two hundred tons of Bog Mine lead, which, according to the terms of the contract, was deliverable in London. There was no specification in the contract as to the time when the delivery is to take place, and therefore the law would imply that the delivery should take place within a reasonable time; and it is a question for the jury at the trial, and this was the question put to them, how the reasonable time, which is an implied part of the contract, is to be ascertained. It seems to me the correct mode of ascertaining what reasonable time is in such a case as this, is by placing the court and jury in the same situation as the contracting parties themselves were in at the time they made the contract; that is to say, by placing before the jury all those circumstances which were known to both parties at the time the contract was made, and under which the contract itself took place." Where the contract in writing is silent upon the subject of time the law implies a reasonable time, and § 1134. Delivery where time is agreed upon — Construction of terms.- Instead of leaving the law to imply the time of delivery, the parties may determine it or attempt to determine it by their contract. In choosing the language to express their agreement, or in making the agreement itself, they may have definite dates in mind or merely ideas expressive of speedy delivery. They may therefore declare that the delivery shall take place "as soon as possible," or "forthwith" or "immediately;" or "on" or "by" or "up to" or "about" a certain day, or "within" a given time or "before" a given date.1 weeks" is not performed by an offer to deliver in about two months. Campbell Printing Press Co. v. Marsh (1894), 20 Colo. 22, 36 Pac. R. 799. 66 "All convenient speed" means reasonable dispatch. Gill v. Browne, 53 Fed. R. 394, 3 C. C. A. 573. parol evidence of a contemporaneous ment to deliver in "about two agreement fixing the time is not admissible. Stange v. Wilson (1868), 17 Mich. 342 (disapproving of Cocker v. Franklin Mfg. Co., 3 Sumn. 530, and approving of Ellis v. Thompson, supra, "which rests upon entirely different principles, and which announces the true doctrine, that the facts on which the parties acted, and the assertions of one concerning the existence of facts on which the other relied, may always be shown to explain their conduct and to show the basis of their action. Proof of facts is a very different matter from proof of promises); " Coon v. Spaulding, 47 Mich. 162. 1“ About” a given date.- Where the contract was for delivery "about November 1," the court said: "The word 'about' before the date of delivery and payment in these contracts has significance and must have effect. About November 1st does not mean on November 1st, and this word gave to the party at least until midnight of that day in which to perform his contract." Smiley v. Barker (1897), 83 Fed. R. 684, 28 C. C. A. 9, 55 U. S. App. 125. An agree 975 "As soon as possible."— Where an order for goods stipulated that they were to be shipped "as soon as possible," but it appeared from the order that the seller would have to do certain work upon them to prepare for them for shipment, it was held that the words "as soon as possible" could not be construed as forthwith, but meant within a reasonable time. Tufts v. McClure, 40 Iowa, 317. To do a thing "as soon as possible" implies an undertaking to do it in the shortest practicable time. Hydraulic Engineering Co. v. McHaffie, 4 Q. B. Div. 670, distinguishing if not reconciling Attwood v. Emery, 1 Com. B. (N. S.) 110, where an order to a manufacturer for delivery "as soon as possible" was construed to mean as soon as he could, regard being had to the condition of his business and prior orders. All of these terms require construction, and, as to such terms as "forthwith," "immediately," "as soon as possible," and the like, it must be construction in view of the circumstances of the case and the situation of the parties. Each of these expres "Directly." A contract to be performed directly" means to be performed, not "within a reasonable time," but "speedily," or at least "as soon as practicable." Duncan v. Top ham (1849), 8 Com. B. 225. See also Tobias v. Lissberger, 105 N. Y. 404, 12 N. E. R. 13, 59 Am. R. 509 (noted below under head of "Promptly "). "Forthwith.”— Where the contract was to supply a vessel and take on a cargo, it was held that "forthwith" could not be construed to mean "immediately," but within "a reasonable time." Roberts v. Brett (1865), 11 H. L. Cas. 337. "Forthwith" when applied to the performance of an act means that it shall be performed as soon as by reasonable exertion confined to that object it might be. Anderson v. Goff (1887), 72 Cal. 65, 1 Am. St. R. 34. Where the contract provided for delivery of the goods "forthwith" and for payment within fourteen days, it was held that this evidently contemplated delivery before payment and that delivery must be made within fourteen days. Staunton v. Wood (1851), 16 Q. B. (Ad. & El., N. S.) 638, 71 Eng. Com. L. 637. "Next year.”—A stipulation for delivery "next year," where the goods were to be transported by water, means the shipping season of next year; it is satisfied by delivery at any reasonable period during that year, and the choice of the time rests with the seller who has to make the delivery. Dingley v. Oler (1885), 117 U. S. 490. "Spring shipment."- Where there was a contract for wood and lumber, which was to be cut out and made ready for "spring shipment," the court, in construing this term, said that the expression might refer to the three spring months as the calendar gives them, or it might, more popularly, refer to the period when vegetation begins to put forth, but no meaning which could be given to it could, as a matter of law, make it extend beyond the 1st of July. Parker v. Selden (1897), 69 Conn. 51, 38 Atl. R. 212. |