Sunshine Cloak & Suit Co. v. Roquette Bros.

• Decision Date: 24 March 1915
• Citation: 152 N.W. 359,30 N.D. 143
• Court: North Dakota Supreme Court
• Parties: SUNSHINE CLOAK & SUIT CO. v. ROQUETTE BROS.

30 N.D. 143

152 N.W. 359

SUNSHINE CLOAK & SUIT CO.

v.ROQUETTE BROS.

Supreme Court of North Dakota.

March 24, 1915.

Syllabus by the Court.

Time is never considered as of the essence of a contract unless by its terms expressly so provided.

In determining whether stipulations as to the time of performing a contract of sale are conditions precedent, the court seeks simply to ascertain what the parties really intended, and, if time appears, on a fair consideration of the language and the circumstances, to be of the essence of the contract, stipulations in regard to it will be held conditions precedent.

In a contract for the sale and delivery of merchandise, a statement as to the time of shipment is ordinarily regarded as a condition precedent, upon the failure or nonperformance of which the party aggrieved may repudiate the whole contract.

A condition precedent is one which is to be performed before some right dependent thereon accrues or some act dependent thereon is performed.

Before any party to an obligation can require another party to perform any act under it he must fulfill all conditions precedent thereto imposed upon himself.

Time is usually of the essence of an executory contract for the sale and subsequent delivery of goods, where no right of property in the same passes by the bargain from the vendor to the purchaser.

A purchaser of goods to be shipped by August 15th is justified in refusing them if shipment is not made until on the 28th of September.

Shipment made on September 28th of goods bought for shipment by August 15th is not, where the buyer refuses to accept them, such a delivery to him as will sustain an action for goods sold and delivered.

Where the purchaser refused to accept the goods, and immediately returned them to the seller, the mere fact that the purchaser wrote a letter stating that he could not take the goods owing to certain local conditions affecting the purchaser's business does not, as a matter of law, constitute a waiver of the condition as to the time of shipment.

The writing of such letter is only a circumstance which may be considered by the jury in determining the questions as to the terms of the contract, and whether there was a waiver on the part of the purchaser of the delay in making shipment.

Appeal from District Court, Stark County; W. C. Crawford, Judge.

Action by the Sunshine Cloak & Suit Company against Roquette Bros. From a judgment for defendants and denial of an alternative motion for judgment notwithstanding the verdict or for a new trial, plaintiff appeals. Affirmed.

Thomas H. Pugh, of Dickinson, for appellant.

H. J. Blanchard and W. F. Burnett, both of Dickinson, for respondents.

CHRISTIANSON, J.

The plaintiff brought this action in the district court of stark county to recover of defendants the sum of $173.25. The complaint alleges that on the 24th day of March, 1911, the defendants purchased of the plaintiff certain ladies' cloaks and coats to be manufactured by the plaintiff and to be delivered to the defendants in the fall of 1911, and that the agreed and reasonable price of said cloaks and coats was the sum of $173.25, which the defendants agreed to pay to plaintiff on the delivery of said property; that thereafter the plaintiff manufactured said cloaks and coats, and delivered the same to the defendants on September 28, 1911, and that the defendants have not paid for the same or any part thereof. The defendants answered, setting forth, among other things, that the goods mentioned in the complaint were not delivered to the defendants in accordance with the contract between the parties thereto; that the said goods were ordered for the fall trade of the year 1911; that the plaintiff undertook and agreed to deliver the said goods for the said fall trade; that in consequence of the negligence of the plaintiff the said goods were delivered to the defendants too late for the business for which the said goods were ordered; and that upon receipt of said goods defendants immediately returned the same to plaintiff, who accepted, and still retains the said goods. The case was tried to a jury. At the close of the testimony plaintiff moved for a directed verdict. The motion was based on two main legal propositions: First, that time was not of the essence of the contract, that the precise date of shipment was not material or vital, and that hence defendants were not relieved from the contract by plaintiff's failure to make shipment within the time prescribed by the contract, but that the remedy of the defendants was to bring an action for the damages sustained; second, that the defendants waived the delay in shipment (1) by failing to rescind the contract with reasonable promptness, and (2) by failing to assert such delay as one of the grounds for refusal to accept the goods in a letter written by defendants to the plaintiff in returning the shipment. The motion for a directed verdict was denied, the case submitted to the jury, and a verdict returned in favor of the defendants for a dismissal of the action. Judgment was entered pursuant to the verdict on April 12, 1913. A motion for judgment notwithstanding the verdict or for a new trial was thereafter made by the plaintiff, and an order entered on November 14, 1913, denying the same, and this appeal is from the judgment and the order denying plaintiff's motion for judgment notwithstanding the verdict or for a new trial.

It is established by the undisputed testimony that on March 24, 1911, one Weinstein, a traveling salesman for the plaintiff, called upon the defendants at their place of business in Dickinson, in this state, and took an order for certain ladies' cloaks and coats. The order was not reduced to writing, and signed by the defendants; hence its terms rested in parol. The only part of Weinstein's testimony relating to the time of delivery of the goods is as follows:

“I took this order in March for the fall trade of 1911. The fall trade is where they buy fall and winter cloaks.”

The testimony of the defendant Fred L. Roquette, relative to this matter, including the objections offered thereto, was as follows:

“I recollect the order for goods as set out by the plaintiff, but do not recollect the exact date of the order. The traveling salesman of the Sunshine Cloak & Suit Company sold these goods to me. I bought that class of goods myself. Q. You may state the conversation relative to the time of shipment, if there was such a conversation. Mr. Pugh: That is objected to as incompetent, irrelevant, and immaterial, and if established no ground for rescission of the sale. The Court: Overruled; exception taken. A. My instructions to all orders the same as this was August 15th, and I stated to the representative of the Sunshine Cloak & Suit Company I wanted these goods shipped by August 15th. These goods were ordered for the fall trade. We buy considerable of this class of goods. There is a distinction as to the time of the year when the goods for certain seasons are being shipped. Shipment for the season of fall and winter goods are usually made anywhere from July 15th to September 1st. It is not customary on regular orders of this kind where they are not special orders to ship later than September 15th in this community. * * * The order was received too late for the fall trade. These goods were received by me about October 10th or 11th. They were returned immediately. I think they were returned that same evening or the next morning. The goods were brought down to my store. I did not know before I opened the parcel or box what they were; there were no identification marks on the case. Immediately on discovering what was in the box I put the cover back on and called the dray and returned them. I immediately notified them of the return of the goods. I think I wrote them a letter and inclosed a copy of the bill of lading.”

No other objection except the one stated above was made to any part of this testimony,nor was any motion made to strike it out.

The testimony on the part of the plaintiff further shows that the goods in question were shipped by the plaintiff on September 28, 1911, to Dickinson, and that it would take from 10 to 12 days, or sometimes a month, for such goods to reach their destination. Plaintiff's witnesses also testified that on October 17th they received the following letter from the defendants:

“Dickinson, N. D. 10/13, 1911.

Sunshine Cloak & Suit Co., Toledo, Ohio-Gentlemen: Inclosed please find Exp. bill of a case of coats which we are returning, we have no bill nor duplicate of order. We cannot use the goods on acct. of the crop conditions are very poor. I am sorry to be obliged to return this or any goods. I should have advised you had we had a duplicate.

Yours very truly, Roquette Bros.”

While several errors are assigned, still the only one seriously urged by the appellant, and worthy of consideration on this appeal, is the denial of the motion for a directed verdict. Incidentally, however, appellant alleges error in the admission of the testimony of the defendant Fred L. Roquette over the objection made thereto. It is obvious that the testimony was not subject to objection upon any of the grounds mentioned in the objection. It is conceded that the bargain for the goods in question rested in parol. The testimony called for by the question objected to merely called for the conversation containing the terms of that bargain. We are entirely satisfied that it was not objectionable upon any of the grounds specified, and that the trial court committed no error in overruling the objection interposed.

[1] 1. It is doubtless true, as appellant contends, that time is never considered as of the essence of a contract, unless by its terms it is expressly so provided; in fact, this is a statutory provision in this state. Section 5918, Compiled Laws. And, if no time is specified for the performance of an act required to be performed, a reasonable time is allowed. But if the act is in its...