City Tailors v. Gay

Counsel for appellee concede in their brief that the defendant in the court below relied solely upon the defense of the alleged breach of contract, in that the two suits of clothes, the purchase price of which constitutes the subject-matter of this controversy, were not delivered within the time agreed upon, and that therefore he had a right to rescind the contract and return the goods.

The evidence was without dispute that the goods were ordered March 22, 1920. The defendant contends they were to be shipped within 7 days, and did not arrive until the expiration of 2 1/2 weeks, and that they were returned to plaintiff by express on August 14, 1920. It thus appears from the undisputed proof that these garments were in the possession of defendant for 4 months without any objection of any character being made to the plaintiff or any notice during that time that he expected to rescind the contract.

While the question as to whether the right to rescind was exercised within a reasonable time is usually regarded as a question for the jury, yet the time may be so long or so short under the undisputed proof as to justify the court in pronouncing it reasonable or unreasonable as a matter of law. Such was the holding of this court in Continental Jewelry Co. v. Pugh Bros., 168 Ala. 295, 53 So. 324, Ann. Cas. 1912A, 657. See, also, Clauss Shear Co. v. Ala. Barber Supply Co.,1 Ala. App. 664, 56 So. 49; 35 Cyc. 152, 153.

Under the undisputed proof as presented in this record we have no hesitancy in holding that the length of time the defendant kept the goods in his possession without objection or excuse therefor was unreasonable, and that he had lost his right to a rescission. We are therefore of the opinion the plaintiff was entitled to the affirmative charge.

The judgment will be reversed, and the cause remanded.

Reversed and remanded.

ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.