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the time stipulated is indispensable. It is not necessary that it shall be so declared in express terms; it is enough if it is a term of the contract. "In the contracts of merchants," said Mr. Justice Gray, in a leading case1 before the supreme court of the United States, "time is of the essence. The time of shipment is the usual and convenient means of fixing the probable time of arrival, with a view of providing funds to pay for the goods, or of fulfilling contracts with third persons. A statement descriptive of the subject-matter, or of some material incident, such as the time or place of shipment, is ordinarily to be regarded as a warranty in the sense in which that term is used in insurance and maritime law, that is to say, a condition precedent, upon the failure or non-performance of which the party aggrieved may repudiate the whole contract."

1139. -Performance at time a condition precedent. Obviously, therefore, unless the seller can show that he did what was incumbent upon him to do, as that he delivered, shipped or tendered the goods at the time when such performance was due, neither later nor earlier, or that performance at that time was waived by the other party, he is in no situation either to enforce the contract on his own behalf or resist an action against him by the other party. On the other

1 Norrington v. Wright, supra.

2 Under a contract for goods to be shipped "during the months of March and (or) April,” a shipment in February is not a compliance. Bowes v. Shand (1877), 2 App. Cas. 455. Under a contract to ship by first vessel from one port, it is not a compliance to ship by first vessel from another port, from which the goods arrive earlier than if shipped from the port agreed upon. Filly v. Pope, supra. Under a contract to ship "about one thousand tons per month," the seller is bound to make monthly shipments. Norrington v. Wright, supra. Under a contract to ship in one of two cer

tain months, it is no performance to ship in a later month. Salmon v. Boykin (1887), 66 Md. 541, 7 AtL R. 701. To same effect: Welsh v. Gossler, 89 N. Y. 540; Hill v. Blake, 97 N. Y. 216; Tobias v. Lissberger, 105 N. Y. 404, 12 N. E. R. 13; Clark v. Fey, 121 N. Y. 470, 24 N. E. R. 703.

Defendants sent an order for goods with date of shipment left blank. The next day they telegraphed the date. When plaintiff entered the order it had both the letter and the telegram. Held, that plaintiff could not recover for goods sent after the date so fixed. Camden Iron Works v. Fox, 34 Fed. R. 200.

hand, if he has performed, or been ready and willing to perform when performance was due, he is entitled to enforce the contract against the buyer.1

§ 1140. Delivery by instalments-Breach of one of successive performances.- Closely allied to the questions considered in the preceding sections is that arising where a contract for delivery or payment in instalments is broken by a failure to deliver or to pay, some instalment as agreed, and it is contended that such failure by one party relieves the other from the necessity of further performance on his part. The failure of the seller may be in not delivering an instalment either in the time, or the amount, or the quality agreed upon; the failure of the buyer may be in not paying an instalment in the time, or the amount, or the manner agreed upon. The question of the duty and default of the buyer may belong more appropriately to subsequent chapters; but inasmuch as the principles seem substantially the same in either case, and the default of one leads often to the alleged default of the other in such a way as to commingle both questions almost inextricably, both will be considered together.

The question, briefly stated, is, Does the default of one party in delivering or paying one instalment justify the other in treating the contract as at an end, or must the latter continue performance on his own part, relying on his action for damages to compensate him for the breach by the former?

§ 1141. The English rule.- The English courts have had occasion to deal with the question in a variety of cases,2 and the results arrived at have not always been harmonious or

1 If the seller offered the goods at the time and place specified, it is no defense that the buyer was not there to receive them. Barton v. McKel. way, 22 N. J. L. 165; Case v. Green, 5 Watts (Pa.), 262, 30 Am. Dec. 311. And where shipments are made at the time specified, the shipper is not responsible for delay in arrival. Peace

River Phosphate Co. v. Grafflin, 58
Fed. R. 550.

2 In Hoare v. Rennie (1859), 5 H. & N. 19, 29 L. J. Ex. 73, the plaintiffs agreed to sell to the defendants six hundred and sixty-seven tons of iron, and deliver the same in four monthly portions, each about one-fourth the entire quantity. But during the first

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satisfactory. In a very recent case, however, the question was elaborately discussed in a controversy arising from the nonpayment by the buyer of an instalment due, though no distinction was made between such a default and one by the seller,

month they shipped but twenty-one tons, which the defendants refused to accept. The pleas averred that the shipment was not in accordance with the contract, and the court held that the defendants were entitled to judgment on the pleas. Pollock, C. B., said: "At the outset the plaintiffs failed to tender the quantity according to the contract; they tendered a much less quantity. The defendants had a right to say that this was no performance of the contract, and they were no more bound to accept the short quantity than if a single delivery had been contracted for."

In Jonassohn v. Young (1863), 4 B. & S. 296, 32 L. J. Q. B. 385, the plaint iffs agreed to sell and the defendant to purchase as much of the plaintiffs' gas coal equal to sample as could be carried from Sunderland to London, in a steam vessel to be furnished by defendant, during nine months. The defendant pleaded that, before any breach on his part, the plaintiffs broke their contract by detaining the defendant's vessel an undue and unreasonable time, upon which the defendant refused to receive any more of the coal, and further, that part of the coal offered was inferior to sample. Upon demurrer these pleas were held bad.

In Simpson v. Crippin (1872) L. R. 8 Q. B. 14, the defendants agreed to supply the plaintiffs with from six thousand to eight thousand tons of coal, to be delivered into the plaint iffs' wagons at the defendants' colleries, in equal monthly quantities

during the period of twelve months, at a fixed price per ton. During the first month the plaintiffs sent wagons to receive only one hundred and fiftyeight tons. At the end of the first month the defendants immediately informed the plaintiffs that they would annul the contract, as the plaintiffs had taken much less than the contract called for. The plaintiffs refused to allow the contract to be annulled, but the defendants declined to deliver any more coal. The court held that the breach by the plaintiffs in taking less than the stipulated quantity during the first month did not entitle the defendants to rescind the contract. Mellor, J., was inclined to follow Hoare v. Rennie, which he could not distinguish from the case at bar, but Blackburn and Lush, JJ., declared that they could not understand the principle on which that case was decided, and refused to follow it.

In Freeth v. Burr (1874), L R 9 C. P. 208, the defendant contracted to sell the plaintiffs two hundred and fifty tons of pig iron, half to be delivered in two and the remainder in four weeks, payment net cash fourteen days after delivery of each parcel. The market was rising, and, notwithstanding urgent demands by the plaintiffs, the delivery of the first one hundred and twenty-five tons was not completed for nearly six months. The plaintiffs refused to pay for the first parcel, claiming a right to set off the loss they had sustained from being obliged to procure other

and the court laid down the principle by which such cases are to be determined in the English courts. That principle, stated in the language of Chief Justice Coleridge, who first announced it, is this: "In cases of this sort, where the question is whether

iron in consequence of the defendant's default; but they still urged the delivery of the second parcel. The defendant, treating the refusal to pay as a breach and an abandonment of the contract by the plaintiffs, declined to deliver any more. The court held that under these facts the defendant was not warranted in treating the contract as abandoned by the plaintiffs.

In Brandt v. Lawrence (1876), 1 Q. B. D. 344, C. A., the defendant entered into two contracts, each of which was for the purchase from the plaintiff of four thousand five hundred quarters of Russian oats, more or less, "shipment by steamer or steamers during February. Should ice at loading port prevent shipment within stipulated time, shipment to be made immediately after reopen ing of navigation." The plaintiff shipped on board one steamer four thousand five hundred and eleven quarters to answer the first contract, and one thousand one hundred and thirty-nine quarters to answer in part the second contract. He also shipped on board another steamer a sufficient quantity of oats to complete the second contract. The shipment on the first steamer was made in time; that on the second steamer was made too late. The court held that the purchaser was bound to accept the portion of the goods, intended to apply on the second contract, which was shipped in time, since a division of the

goods was evidently contemplated in the term "by steamer or steamers."

Reuter v. Sala (1879), 4 C. P. D. 239, C. A., was a case in many ways very similar to Brandt v. Lawrence, though the majority of the court held that it did not fall within the same principle. The plaintiffs contracted to sell to the defendants twenty-five tons (more or less) Penang pepper, October and (or) November shipment, name of vessel or vessels, marks and particulars to be declared within sixty days from date of bill of lading. On the 19th of January, 1877, the plaintiffs, purporting to act in pursuance of the contract, declared by a vessel called the "Borga," five hundred bags of black Penang pepper, which would be equal in weight to about twenty-five tons, in three parcels, the subject of separate bills of lading - namely, two hundred and eighty-five and one hundred and ten bags under bills of lading dated the 29th of November, 1876, and one hundred and five bags under a bill of lading dated the 11th of December, 1876. In point of fact the shipment of the one hundred and five bags, equivalent to about five tons, had not been made until the month of December; and on the 30th of January, 1877, the defendants wrote that they would not accept the declaration. The plaintiffs argued that, as the pepper tendered was shipped under three separate bills of

1 Freeth v. Burr, L. R. 9 C. P. 208, supra.

the one party is set free by the action of the other, the real matter for consideration is whether the acts or conduct of the one do or do not amount to an intimation of an intention to abandon and altogether to refuse performance of the contract. I

lading, and was so declared, the declaration and tender, although one in fact, might be treated as severable in law, and consequently that the defendants were bound to accept the twenty tons, which, upon this hy pothesis, were properly declared and tendered. But Thesiger, L. J., said: "I cannot assent to this argument. The present contract ought and must, in my opinion at least, involve this consequence, namely, that where the sellers elect to ship by one vessel the whole quantity contracted to be sold, and declare their election to the buyers, still more when they follow up their election and declaration by tendering the whole quantity pursuant to their declaration, they cannot, after it is discovered that as to a portion of the quantity shipped it was not shipped in accordance with the terms of the contract, and that the buyers are not bound to accept that portion, turn round and call upon them to accept the remaining portion of the quantity shipped, which though physically separable, and the subject of distinct bills of lading, yet had always been treated by the sellers as part of one entire whole, which the buyers by the declaration were told to treat, and by the tender were called upon to accept, as one entire whole." This case was accordingly held not to fall within the principle of Brandt v. Lawrence, for while in both cases the shipment was to be by vessel or vessels, in the earlier case the goods were actually separated in this man

ner, as contemplated by the contract, but in the case at bar the option to separate by such shipment had not been exercised by the seller.

Brett, L. J., was, however, of the opinion that this case should not be distinguished from Brandt v. Law. rence. In a dissenting opinion he said: "It seems to me that the principle to be deduced from these cases is that where, in a mercantile contract of purchase and sale of goods to be delivered and accepted, the terms of the contract allow the delivery to be by successive deliveries, the failure of the seller or buyer to fulfill his part in any one or more of those deliveries does not absolve the other party from the duty of tendering or accepting in the case of other subsequent deliveries, although the contract was for the purchase and sale of a specified quantity of goods, and although the failure of the party suing as to one or more deliveries was incurable, in the sense that he never could fulfill his undertaking to accept or deliver the whole of the specified quantity. The reasons given are that such a breach by the party suing is a breach of only a part of the consideration moving from him; that such a breach can be compensated in damages without any necessity for annulling the whole contract; that the true construction of such contracts is that it is not a condition precedent to the obligation to tender or accept a part; that the other party should have been or should be always ready, and willing,

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