Whiting v. Gray

• Decision Date: 21 January 1891
• Citation: 8 So. 726,27 Fla. 482
• Court: Florida Supreme Court
• Parties: WHITING v. GRAY.

8 So. 726

27 Fla. 482

WHITING v. GRAY.

Florida Supreme Court

January 21, 1891

Error to circuit court, Walton county; JAMES H. McCLELLAN, Judge.

Syllabus by the Court

SYLLABUS

1. Where to time is expressed in an executory contract for its performance, the law implies that it shall be performed in a reasonable time.

2. Where, by the terms of a contract, lumber is to be delivered 'commencing from the 10th of July, or as soon thereafter as vessel can be ready,' and the parties, when making the contract, have in view no particular vessel to transport the lumber, but understand that the party purchasing the lumber will have to charter a vessel for such purpose, it is his duty to have the vessel ready within at least such time after the mentioned 10th day of July as under the circumstances would be a reasonable time for chartering one, and having it ready to receive the lumber

COUNSEL Blount & Blount, for plaintiff in error.

Mallory & Maxwell, for defendant in error.

OPINION

RANEY C.J.

Plaintiff in error sued defendant in error for damages sustained by the former by the failure of the latter to keep and perform a contract between them made June 11, 1886, at Pensacola whereby the defendant agreed to sell, and the plaintiff to buy, 350,000 feet of pitch pine lumber at a stated price, to be delivered on cars along-side of vessel at a specified wharf, at the rate of not less than 20,000 feet per day 'commencing from the 10th of July, or as soon thereafter as vessel can be ready,' payment to be made in cash upon completion of loading and signing of bill of lading.

The declaration alleges the making of the contract, and makes a copy thereof a part of itself, and avers that at the time of the execution of the contract the plaintiff and defendant had in view no particular vessel to transport the lumber, but it was understood between them that a vessel to transport it should thereafter be chartered by the plaintiff; that the plaintiff has done and performed all things to be done and performed under the contract, and that as soon after the 10th day of July, 1886, as a vessel to transport the lumber could be procured, he procured the same, and advised the defendant thereof, and demanded from him a delivery of the lumber, and that the defendant refused to deliver it, or any part thereof, to plaintiff, and still refuses to do so; and by reason of such breach the plaintiff was put to great expense, and lost great gains and profits which he would otherwise have made, viz., $2,000.

To this declaration the defendant pleaded that, though no time was fixed in the contract for chartering a vessel to transport the lumber to be delivered by defendant, the plaintiff was bound by the contract to charter a vessel in a reasonable time, which plaintiff did not do, and it is not true that the plaintiff has done and performed all things to be done and performed by him; that the defendant cut the lumber according to contract, and was ready and offered to deliver the same but the plaintiff would not receive it within a reasonable time.

This plea was demurred to as containing no sufficient defense, and the court overruled the demurrer.

There was also another plea, which it is unnecessary to recite, as the only alleged error relied upon for a reversal of the judgment dismissing the action is the ruling upon the demurrer to the first plea. The other error assigned is abandoned.

The first question to be considered is the meaning of the contract as to the time when the delivery of the lumber was to commence. The duties of the plaintiff and defendant as to delivering and receiving were reciprocal. If the vessel should not be ready on the 10th of July, 1886, the contract not only contemplated that the defendant should commence delivery as soon thereafter as she should be ready, within the legal meaning of the terms, 'as soon thereafter as the vessel can be ready,' but it also imposed upon the plaintiff the duty of having her ready to receive the lumber at the designated place, within such time as the quoted words mean. What then, is the meaning of the terms quoted?

Plaintiff's counsel admit that where a contract, of the character of this one, does not specify the time for performance, the law is that it shall be performed within a reasonable time; but urge that here the parties have fixed the time without reference to reasonableness, and hence that the rule of the law which, when the contract is silent as to time, impliedly inserts reasonable time, the same as if it had been expressly agreed upon and inserted by the parties, cannot be invoked. The meaning of the contract, or intention of the parties, considering the alleged circumstances under which it was made as to chartering a vessel, which circumstances are admitted by the plea, they contend to be that the vessel should be procured by the plaintiff as soon as she in fact could be, but he was not required to commit himself to any certain time, and did not do so; that there was uncertainty as to when he might procure her, but no uncertainty as to the intention of the parties to wait until it should be done, and when he did do it he was to have her ready, and the time for commencement of delivering would arrive; that, by the contract, the plaintiff was to charter her, and have her ready as soon as it was possible to do so; and that, this being the intention of the parties, the defendant cannot interpolate into the contract the requirement that the vessel must be procured and be ready within such a time as, under the circumstances surrounding the parties, would, in the absence of the above provision of the contract, be a reasonable time.

Though where an entire contract fails to express the time for its performance, or the commencement of performance, parol evidence cannot be introduced to show that a specified time was agreed upon by the parties, or that the time for performance is other than a reasonable time; yet it seems to be the law that the circumstances surrounding the parties at the time, including even conversations between them, may be introduced to aid in the ascertainment of what was a reasonable time. Cocker v. Manufacturing Co., 3 Sum. 530; Ellis v. Thompson, 3 Mees. & W. 445. And it is upon this theory that the allegations of the declaration as to the parties having in view no particular vessel, and their understanding that plaintiff should charter a vessel, have been put into the declaration. Admitting, as we may for the purposes of this decision, without concluding ourselves as...