6 Pa. Super. 246 | Pa. Super. Ct. | 1898
Opinion by
The appellants argue, that the point of this case is whether time is of the essence of the contract, when the vendee of goods has them specially manufactured for his use and leaves them in the possession of the vendor subject to order. But we do not so understand the question raised. The contract, as evidenced by the decedent’s written order which was accepted by the' appellants, contains nothing which indicates that the second instalment was to be held subject to order. Nor do we find any competent parol evidence that such was the understanding of the parties. The appellants were the actors and were bound' to ship the goods within the time specified in the contract with» out further order unless performance within that time was excused or waived.
The authorities cited in the opinions of the auditing judge and of the court upon exceptions, as well as others that might be cited, show that a stipulation as to the time of delivery in an executory contract for the sale of goods is an essential and not a collateral term. A distinction has been drawn in favor of contracts for work or skill, and the materials upon which it is to be bestowed, and as to such it has been said that “ a statement fixing the time of performance of the contract is not ordinarily of its essence, and a failure to perform within the time-stipulated, followed by substantial performance after a short delay will not justify the aggrieved party in repudiating the entire contract but will simply give him his action for damages for the breach of the stipulation: ” Beach on Contracts, sec. 619. We doubt whether this distinction would hold good in ordinary mercantile contracts although the goods were to be manufactured. Merchants are not in the habit of placing upon their
It is probable that the appellants agreed to furnish the books at a less price, because they could make them all at one time but we fail to see how this fact affects in any way the question of their duty to deliver them within the time specified. If it has any bearing it tends to show that the failure to deliver was without even plausible excuse. As the learned president of the court below well says : “ In the case before us there is no hardship, to the claimants, except that arising from their own laches and oversight of the express conditions of the contract.”
When the written and printed parts of a contract cannot be reconciled the former is presumed to have been separately and particularly considered by the parties and to express their exact agreement on the subject. See Grandin v. Ins. Co., 107 Pa. 26; Haws v. Fire Assn., 114 Pa. 431; Duffield v. Hue, 129 Pa. 94 ; Dick v. Ireland, 130 Pa. 299; Lane v. Nelson, 167 Pa. 602. This rule was properly applied in the present case. When the parties came to fix the time for delivery, instead of naming a specific date “ on or about ” which the second instalment should be shipped by the appellants and accepted by the purchaser, they designated a period within which it was to be shipped, leaving the precise date of shipment within that period to the option of the appellants. Whether the year was to be computed from the date of the contract (which is the more reasonable construction) or from the date of the first shipment, is immaterial; because, in either case, the goods were not shipped within the time specified in the contract.
