Oklahoma Vinegar Co. v. Hamilton, 132 Ala. 593

Oklahoma Vinegar Co. v. Hamilton

132 Ala. 593 | Ala. | 1902

McCLELLAN, C. J.

— The evidence goes to show that the time within which delivery of the goods defendants ordered from plaintiff’s agent was to be made, was of the essence of the contract of sale, and the written order signed by the defendants expressly stipulates that the goods were to be shipped at once from Montgomery to the defendants at Troy, Alabama. It is also shown that the goods were not shipped at once, but more than two weeks after the order was given, and after the occasion for which defendants wanted the goods had passed, that *595they were not shipped from Montgomery at all, but from Atlanta, Georgia, and that they arrived at, Troy more than three weeks later than they were to have been delivered there according to the contract between defendants and plaintiff’s agent, and entirely too late for the purposes of defendants communicated to the agent at the time the order was given. It is also shown that defendants promptly declined to receive the goods and repudiated the transaction on the ground of the unwarranted delay in delivery. It is not and could not be even plausibly insisted on these facts that the Vinegar Co. in this suit for the price of the: goods ivas entitled to the affirmative charge, though that direction was requested by plaintiff on the trial. It is insisted, however, that notwithstanding the exigent nature of defendants’ use for the goods, communicated to plaintiff’s agent, and notwithstanding the ivritten order itself calls for shipment of them “at once” from a nearby station, the plaintiff had such reasonable time for shipment as would admit of its instituting and completing an investigation as to defendants ’solvency, etc., and that ehaa-ges requested to that effect should have been given. We do not think so. The doctrine is that when no time is specified for shipment or delivery the shipment and delivery is Avell made in such time as would be reasonable under all the circumstances; and it is true, too, doubtless, that some appreciable time must elapse on an order for shipment “at once” and such necessarily lapsing time would be a reasonable time in a sense referable to the urgent words of the order; but in this latter case, the case here, it would be palpably misleading to instruct the jury that plaintiff bad a reasonable time to ship and deliver without defining the time, that would be reasonable by a reference to the urgency of defendants’ occasion and the expedition demanded by the terms of the order. Especially would such charges have been misleading, and prejudicial here in view of the long delay which supervened and the asserted purposes of that delay — to inquire far and near into the-commercial standing of the defendants. It was clearly the contemplation of de*596fendants and tlie agreement of the agent that the goods should .be shipped at once from Montgomery, and no longer delay in shipment was authorized than was necessary to consult the persons referred to in the order, and who lived iu Montgomery, as to defendants’ solvency. etc., and thereafter to deliver the goods at a seasonable hour to the carrier. The charges asked by plaintiff were properly infused.

Affirmed.