Robinson Clay Products Co. v. John H. Thatcher & Sons

PAGE, J.

This action was to recover the contract price of goods sold. On March 18, 1913, the defendant ordered certain fire brick and tiles from the plaintiff by a written order. The tiles were to be manufactured in Ohio, as the defendant knew. Prior to the giving of the order, one of defendant’s employés testified that he called up the plaintiff’s New York office, and was quoted prices, and asked when deliveries could be made, and was informed, “In four or five weeks.” The written order states these prices, but is silent as to time of delivery. The fire brick was delivered May 6th, and was accepted by "the defendant. Thereafter the defendant wrote and telephoned to plaintiff’s New York office several times, inquiring when the tiles would be shipped.' At no time, however, did they notify the plaintiff that, unless the goods were shipped at a time certain, they would cancel the order. The tiles were shipped on May 20th. On that date the defendant mailed a notice of cancellation of the order.

[1]- Judgment was given for the defendant, on the theory that time was of the essence of the contract. But neither was a time for delivery specified in the order, nor can the indefinite expression of the salesman’s expectation over the phone be construed as an agreement definitely fixing the time for delivery. The defendant could not make time of the essence, without thereafter giving plaintiff notice of its intention to cancel the order unless delivery was made on or before a fixed time.

[2] Even if time had been of the essence of the contract, and fixed at five weeks from March 19th, the defendant waived it by an an acceptance of a portion of the order after that date and requesting the plaintiff to thereafter deliver the tile, and, once waived, notice fixing a new time was necessary.

The judgment should be reversed, and a new .trial granted, with costs to appellant to abide the event. All concur.