Fowler v. Rigney , 5 Abb. Pr. 182 ( 1867 )

Daly, F. J.

—The complaint sets forth that the plaintiffs agreed to sell, and the defendants to buy, fifty tons of oil cake, deliverable between the the 15th of September and the 15th of October, 1864, seller’s option, to be delivered free on board buyer’s vessel; buyers to furnish landing-certificates, and four days’ notice of delivery to be given. That on the 12th of October, 1884, the plaintiffs notified the defendants that they were ready to deliver, and requested the defendants to specify the vessel on board which the delivery was to be made. That the defendants declined to receive the oil cake, alleging that the plaintiffs had not fulfilled the contract as to the time of the notice of the delivery required by it. That the plaintiffs renewed their offer and request on the 15th of October, but the defendants again refused, assigning the same reason.

The defendants demur to the complaint, and the point raised by the demurrer is, whether the notice given by the plaintiffs on the 12th of October, of their intention and readiness to deliver, was sufficient under the contract.

I think it was not. The delivery was to be between the 15th of September and the 15th of October; that is, it was to be before the 15th of October, and four days’ notice of it was to be given. The last day for the delivery was the 14th of October, and four days’ notice of an intention to deliver on that day should have been on the 10th. It was given on the 12th, and that was not a notice to deliver on the 14th, but on the 15th. It was too short, and the defendants, not having been notified in the mannér provided by contract, of an intention to deliver on or before the 14th, were discharged from any further liability upon it (Atkyns v. Boylston Ins. Co., 5 Metc., 439 ; Bunce v. Reed, 16 Barb., 347 ; 2 Pars. on Cont., 177, note).

The plaintiffs insist that the true construction of the contract is this : That they had the whole of the time between the 15th of September and 15th October to elect or not to deliver, and that if they notified the defendants at any time before the 14th, of their intention to deliver, they were to notify them at the same time that the delivery would be made four days thereafter ; or, to make it more plain, that they could notify the defendants on the 14th that they would deliver on the 18th. But I do not so read the contract. It expressly provides that the oil cake “ is deliverable between this date (15th of September, the date of the contract), and October 15th, seller’s option,” and “four days’ notice [is] to-be given.” The plain import of this language is that if the plaintiffs elect to deliver they must deliver within that period, and give »four days’ previous notice of the time, that the defendants may have their vessel ready and be prepared at the time-with landing certificates.

The demurrer is well taken,' and the defendants are entitled to judgment.