4 Ga. App. 226 | Ga. Ct. App. | 1908
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; Civil Code, §3675 (8). As to the respective functions of the judge and the jury in such eases, see Civil Code, §§3672 et seq. The cardinal rule of interpretation is whether or not the parties
But counsel for the plaintiff argues that the mere acceptance of the property, under the circumstances, was a waiver, whether the deliveries were promptly made or not; and he cites cases wherein it was held that the forfeiture of an insurance policy was waived by an acceptance of the overdue premium, and eases where, by accepting overdue rent, a landlord was held to have waived the clause in the lease as to forfeiture. That such a principle is not applicable to an ordinary contract for the sale of personal property is not now an open question in this State. Van Winkle v. Wilkins, 81 Ga. 94 (7), 104 (7 S. E. 644, 12 Am. St. R. 299). In that case Judge Bleckley says: “It was urged in argument that receiving the machinery was a waiver both of its defects and of damages resulting from its non-delivery in due time. Why' so? After expensive preparation to have and use a mill, it was probably much better to have one of inferior quality than none at all. . . As to the damages resulting from delay, these had already been sustained when the mill was received; its reception, in so far as it affected them at all, could only hinder more from accruing; it certainly could not increase them. There was no inconsistency