Gude & Walker v. J.F. Bailey Co.

• Decision Date: 20 April 1908
• Docket Number: 668.
• Citation: 61 S.E. 135,4 Ga.App. 226
• Parties: GUDE & WALKER v. J. F. BAILEY CO.
• Court: Georgia Court of Appeals

61 S.E. 135

4 Ga.App. 226

GUDE & WALKER v. J. F. BAILEY CO.

No. 668.

Court of Appeals of Georgia

April 20, 1908

Syllabus by the Court.

In contracts for the sale of personal property wherein a time is named for delivery, it is a question of construction in each particular case as to whether or not the time named is a material part of the contract, a breach of which will give the other party a right of action therefor. In the present case time was of the essence of the contract.

[Ed Note.-For cases in point, see Cent. Dig. vol. 43, Sales, §§ 217-223.]

Where a contract contains a term prescribing a time for performance the term as to time may be enlarged by an agreement based on a consideration.

(a) An offer by the promisee to waive damages resulting from the breach of the term of a contract as to the time of performance on condition that the other party thereafter make prompt delivery, becomes a valid agreement only upon the compliance with the condition.

(b) After the plaintiff had broken the term of the contract as to the time for the delivery of lumber, the defendants wrote "If you will get us this material promptly, however there will be no question of damages of any kind, and we trust you will do so." The lumber was thereafter delivered at intervals extending through several months. Held, that it is a question for the jury to be determined in the light of all the circumstances and the exigencies of the contracting parties as to whether or not the delivery of the lumber was within the time limited by the offer.

(c) The mere acceptance of property after the time for delivery named in the contract is not necessarily in every case a waiver of the right to claim damages for nondelivery at the time prescribed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Sales, § 458.]

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by the J. F. Bailey Company against Gude & Walker. Judgment for plaintiff, and defendants bring error. Reversed.

Ellis, Wimbish & Ellis, for plaintiffs in error.

Jno. A. Boykin, for defendant in error.

HILL C.J.

When parties enter into a contract for the sale of personal property and name therein a time at which delivery is to take place, the question as to whether or not the time named is a material part of the contract is a question to be decided in each case by a construction of the language used in the light of the other relevant circumstances. Sneed v Wiggins, 3 Ga. 94, 102; Civ. Code 1895, § 3675 (8). As to the respective functions of the judge and jury in such cases, see Civ. Code 1895, § 3672 et seq. The cardinal rule of interpretation is whether or not the parties intended that time should be of the essence. "In contracts of merchants 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, on the failure or nonperformance of which the party aggrieved may repudiate the whole contract." Norrington v. Wright, 115 U.S. 188, 203, 6 S.Ct. 12, 29 L.Ed. 366; Cleveland Rolling Mill Co. v. Rhodes, 121 U.S. 255, 261, 7 S.Ct. 882, 30 L.Ed. 920, and citations; McGrath v. Gegner, 77 Md. 331, 336, 26 A. 502, 39 Am.St.Rep. 415; 9 Cyc. 604. In the case at bar it is plain that the parties understood that time was a material term of the contract. This is shown by the letters; and, even if they are not conclusive, the undisputed evidence removes all doubt on the question. In the very first letter written the plaintiff was specifically asked as to how promptly delivery of the lumber could be made, and the reply was that delivery would commence in two to three weeks. The defendant Walker testified at the trial that he told the plaintiff's Atlanta manager, with whom most of the negotiations were carried on, that time was as much of an object as money, and was assured by him that his principal would keep the stipulation as to time without fail. See Savannah Ice Co. v. American Refrigerator Transit Co., 110 Ga. 142, 145, 35 S.E. 280. It therefore follows that the plaintiff was guilty of a breach of the contract by not delivering the lumber within the time limited. According to the contract delivery was to commence in two to three weeks; and the evidence shows that no part of the lumber was delivered within seven to eight weeks. For a breach of this term of the contract the defendants could have treated the contract as at an end, and have instituted suit for damages caused by nonperformance on the part of the sellers. This they did not do; but wrote to the plaintiff complaining of the breach, and stating that they would be damaged thereby in various ways, for all of which they would hold the plaintiff responsible. The plaintiff replied, expressly repudiating liability under the contract for the items of damage claimed. After the receipt of this letter, the defendants wrote on August 19th: "If you will get us this material promptly, however, there will be no question about damages of any kind, and we trust you will do so." In view of the previous negotiations, this letter could mean but one thing, namely, the defendants were willing to waive all claim for damages growing out of the plaintiff's nonperformance within the time limited if thereafter the lumber should be delivered promptly. That this was the purpose of the letter is further brought out by the testimony of Walker at the trial. He says: "On August 19th I wrote this letter stating that there would be no question about damages if the material was promptly coming; if it came promptly, I would not hold them for damages. That was a further inducement to get it here. Now, that was after the time for delivery. That was after I found that I could not get it promptly anywhere else." It is equally plain from the letter, as well as from the undisputed evidence, that the offer to waive was not absolute or unconditional. It was expressly conditioned upon the plaintiff's thereafter delivering the lumber promptly. See McCroskey v. Hamilton, 108 Ga. 646, 34 S.E. 111, 75 Am.St.Rep. 79. The defendants in effect said: "We offer to waive or renounce our claim for damages growing out of your breach in consideration of your hereafter promptly...