Dowling-Martin Grocery Co. v. J.C. Lysle Milling Co.
Decision Date | 27 November 1919 |
Docket Number | 4 Div. 808 |
Citation | 83 So. 486,203 Ala. 491 |
Parties | DOWLING-MARTIN GROCERY CO. v. J.C. LYSLE MILLING CO. |
Court | Alabama Supreme Court |
Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.
Action for breach of contract begun by attachment by the Dowling-Martin Grocery Company against the J.C. Lysle Milling Company. From judgment sustaining demurrers to the complaint plaintiff appeals. Affirmed.
The following telegrams and letters are directed to be set out:
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J.E.Z. Riley, of Ozark, and T.M. Espy; of Dothan, for appellant.
Farmer, Merrill & Farmer, of Dothan, for appellee.
On the trial demurrer was sustained to the complaint, plaintiff declined to plead further, and defendant had judgment final.
Directing attention to the ruling on demurrer, it is pertinent to observe that Dowling-Martin Grocery Company sued J.C. Lysle Milling Company to recover damages for the breach of an executory contract in which the former purchased of the latter certain flour, to be delivered on orders or shipping directions. The contract, made on January 8, 1917, is set out in some counts, and its legal effect is averted in others. B.R., L. & P. Co. v. Littleton, 77 So. 565. The letters and telegrams of January 4 to May 8, 1917, inclusive, constituting the contract and evidencing its alleged breach, set out in the complaint, will be embraced by the reporter of decisions in his statement of facts.
It is averred that plaintiff ordered defendant to ship the flour on, respectively, March 30 and May 8, 1917, and that the latter declined to do so on the ground of unreasonable delay in complying with the terms of the contract and ordering the shipment made; further, that there was no time limit fixed by the parties within which defendant should ship the flour, or within which plaintiff would make payment therefor and order shipment. Defendant says that, no time limit for compliance being fixed, payment or direction and demand for shipment must be made by plaintiff within a reasonable time after making the contract; that defendant was only bound to deliver within a reasonable time after compliance and request for shipment. The averred correspondence confirming acceptance of the order contained defendant's specific statement that it awaited plaintiff's shipping directions. The contract relation of the parties, when the nature of the property dealt with is considered, was that the law implied: (1) A reasonable time within which direction for delivery should be given or payment of contract price made was of the essence of the contract; (2) that seller was under no obligation to ship until buyer had given shipping directions or until payment was made and accepted; (3) that the failure or refusal of buyer to direct shipment or indicate its willingness to accept the flour within a reasonable time after the booking of its order relieved the seller of any obligation to deliver the same.
What is a reasonable time for performance of a contract is determined by the circumstances of the case, and is a question of fact or of law. McFadden v. Henderson, 128 Ala. 221, 230, 231, 29 So. 640; Copeland v. Union Nursery Co., 187 Ala. 148, 65 So. 834; Pratt Con Coal Co. v. Short, 191 Ala. 376, 390, 68 So. 63; McGowin Lbr. & Exp. Co. v. Camp Lbr. Co., 77 So. 433, 436; Elliott on Contracts, § 1552; Parsons on Contr. vol. 2 (9th Ed.) p. 813; Addison on Contr. § 578. If dependent upon disputed facts, extrinsic to the contract, the reasonable time becomes a question of fact, and when it depends upon the construction of a contract and undisputed extrinsic facts, it is a matter of law. Cotton v. Cotton, 75 Ala. 345, 347; Harris v. Free, 6 Ala.App. 113, 119, 60 So. 423; Drake v. Goree, 22 Ala. 409; Comer v. Way, 107 Ala. 300, 19 So. 966, 54 Am.St.Rep. 93; Griffin v. Ogletree, 114 Ala. 343, 21 So. 488; Alford v. Creagh, 7 Ala.App. 358, 62...
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