165 F. 109 | E.D. Pa. | 1908
On September 25, 1908, the referee made an order reducing the claim of Sitley & Son, Incorporated, from $2.214.50 to $200. This claim of Sitley & Son was for damages which they alleged they sustained by reason of the bankrupt company’s failure to deliver certain merchandise purchased by them during the year 1907, and that they were compelled to go into the open market and buy the same merchandise at a much higher price than what they had agreed to pay the bankrupt company. The facts arc fully stated in the certificate of the referee, and liis reasons given for reducing the claim in accordance with the term;; of liis order.
We are unable to find any error either in the referee’s ruling on the evidence offered, or his conclusion as to the right of the claimants to recover for the difference in price on goods subsequently purchased by them in the open market instead of similar merchandise for which they made no call on the Millbourne Mills Company, as required by their contracts, either before or after the time limit had expired. It is plain these contracts, as interpreted by the parties themselves, required the claimants to notify the bankrupt company when they desired tlie deliveries to be made, and, in the absence of a receipt of such a notice, the Millbourne Mills Company had a right to assume that plaintiffs were not ready for delivery, and if, as in this case, the claimants failed to take the merchandise purchased according to contract within the time specified, the seller had a right, after the expiration of the time, as he did in this case, to notify the claimant of its refusal to be further bound by the contract. In mercantile transactions time is of tlie essence of the contract, unless the contrary-appears, as the purchase and delivery of goods is a matter of importance to both buyer and seller for the purpose of enabling them to successfully develop and.execute their plans in connection with the goods bought or sold in tlie use to which they are to be put. 9 Cyc. 604 and 616f; Cleveland Rolling Mill v. Rhodes. 121 U. S. 255, 7 Sup. Ct. 882, 30 L. Ed. 920; White v. Wolf, 185 Pa. 369, 39 Atl. 1011; Jones v. United States, 96 U. S. 24, 24 R. Ed. 644.
The order of the referee of September 25, 1908, in reducing the claim of Sitley & Son, Incorporated, from $2,214.50 to $200, is hereby affirmed.
