Obear-Nester Glass Co. v. Mobile Drug Co.

McCLELLAN, J. The Mobile Drug Company — the plaintiff — was engaged in the drug business in Mobile, Ala. The Obear-Nester Glass Company- — the defendant — was a manufacturer of glass bottles, containers, etc., at St. Louis, Mo. As appears, the action is by the buyer -against the seller of goods. On October 30, 1915, these corporations entered into the written contract to be quoted in its presently material particulars: “The Obear-Nester Glass Company, of St. Louis, Mo., have this day sold Mobile Drug Company, of Mobile, Ala., and they have this day bought from us two or three cars flint glass prescription ware, each ear to consist of not less than 400 Western sizes cases, at following terms and conditions: * * * Shipments to be made as follows: In carload lots at specified dates, between the date of contract and July 31, 1916. Buyer agrees to furnish shipping specifications on all ware contracted for not later than June 30, 1916. Specifications to be furnished by the buyer at least thirty (30) days in advance of date of shipment. “The seller does not agree to warrant as to exactness of capacity the articles to be delivered hereunder, nor that they shall be equal to any particular sample, but agrees only that the said goods shall be merchantable for the general use for which they are designed. The seller agrees to take all reasonable care and diligence in fulfilling this contract, but shall not be responsible for any delay or prevention caused by or resulting from acts of Providence, strikes, lockouts, fires, floods, or any accident or contingency beyond its control. All ware that shall be in seller’s hands July 1, 1916, under this contract, shall be invoiced as shipped and stored at buyer’s risk.” Two of tbe cars of goods mentioned in the contract were ordered by the buyer and shipped by the seller prior to June 3, 1916. On June 3, 1916, the plaintiff (appellee) appropriately ordered the third car. No shipment or delivery of this third car has been made; the defendant (appellant) declining to do so for the reasons asserted in its pleas, to which demurrers were sustained. The action is for damages for refusal to deliver this third car. [1-3] Some of the pleas proceeded on the theory that time (July 31, 1916) was of the essence of the contract; but the court, construing the writing to the contrary in this particular, sustained demurrers to these pleas. The writing does, in our opinion, make time of the essence of the contract, the date “July 31, 1916,” terminating the obligation of the seller to ship the wares described therein. While the contract declares the buyer had, on October 30, 1915, bought from the seller the wares mentioned, yet, as respects the number of cars, it was left to the buyer to determine whether the third car should be ordered, and hence to establish, within the terms of the contract, the seller’s obligation to ship the third car; the title to this subject of the contract (third car) not passing at the date of'the contract. The seller’s engagement to. ship the cars depended upon the buyer’s specification of shipping dates,'the final opportunity of the buyer to so specify being expressly limited to dates “not later than June 30, 1916,” and, further, that the shipping specifications should be furnished bv tire buyer “at least thirty (30) days in advance of date of shipment,” the obligation of the seller to ship terminating on “July 31, 1916,” the date stipulated. The contract is between mercantile concerns; and, as is the case generally, time is of the essence of such contracts. Norrington v. Wright, 115 U. S. 188, 203, 6 Sup. Ct. 12, 29 L. Ed. 366; McFadden v. Henderson, 128 Ala. 221, 230, 29 South. 640; Clauss Shear Co. v. Ala. Supply Co., 1 Ala. App. 664, 666, 56 South. 49; 23 R. C. L. p. 1373. The provisions of this writing exonerating the seller from responsibility “for any delay or prevention,” for causes therein mentioned, in fulfilling its obligations under the contract, are referable to the period preceding the termination of the contract, viz. July 31, 1916, not after the date of its termination. Hence, if the causes of delay or prevention, stipulated in the writing, intervened without fault or neglect on the part of the defendant . — under the plaintiff’s order of June 3, 1916 —of the third car of wares on or prior to July 31, 1916, the defendant was entitled to the benefit and protection of the stipulation against responsibility, liability for the consequences of such delay or prevention ás the writing contemplated. This contract obligated the seller to deliver the several cars, when ordered by the buyer as the writing required, “f. o. b. cars St. Louis, Mo.” — there being nothing therein to invite or to justify the construction that these parties engaged for the purchase, sale, and delivery of these wares subject to other contracts already made or to be made by the seller with third persons, or with the effect of subjecting the. filling of plaintiff’s order or orders to the rule of relative obligation or apportionment that, *216 on evidence before the Massachusetts courts, was recognized in Oakman v. Boyce, 100 Mass. 477, 478, 484 et seq.; a status of stipulation and fact not present in the cause at bar. See Scruggs & Echols v. Riddle, 171 Ala. 350, 364, 365, 54 South. 641. The provision that the seller should take “all reasonable care and diligence in fulfilling this contract” evinced no intent to so subject the obligation of the seller; but, to the contrary, in view of the fact that the terms of the contract fixed July 31, 1916, as the date of its termination, that provision was designed to express the obligation on the seller, when proper order had been made, to employ reasonable care and diligence to effect the seller’s fulfillment of the contract before its termination on July 31, 1916. If the buyer (plaintiff) was denied the delivery of the third car of wares ordered on June 3, 1910, before the contract expired by its terms, because of the failure of the seller' (defendant) to observe the care and diligence thus prescribed in this contract, the seller would become liable for this breach; the absence of the required care and diligence being such as was not within the exemption from responsibility for delay or prevention for the causes contemplated by the writing against which the seller stipulated. [4, 5] In plea 1 (filed February 19, 1919) the defendant set up, as a cause exonerating it from responsibility consequent upon its failure to ship the third car by July 31, 1916, that a described “leak” in an essential part of its manufacturing plant, “accidentally” occurring, prevented performance by the seller, during the life of the contract. The contract was designed to protect the seller from the consequences of “any accident or contingency beyond its control.” The happening described in plea 1, filed February 19, 1919, was averred to be an accident or contingency within the contemplation of the contract; and it was efficiently averred in the plea that the “leak” was an accident or contingency beyond the control of the seller. The plea was not subject to the demurrer. To sustain this plea’s allegation of inability of the seller to ship the third car, before the termination of the contract on July 31, 1916, proof, however plenary, of assumed obligations to supply other buyers, than this plaintiff, would not at all suffice; and in order to Justify the failure stated the mishap alleged must have disabled the plant in such sort as to prevent the manufacture of the wares the defendant had engaged to deliver to plaintiff. The court erred in sustaining the demurrer to plea 1, filed February 19, 1919.. The construction we have accorded this contract renders unnecessary the particular consideration of other pleas. [6] Since time was of the essence of this contract, terminating the seller’s (defendant’s) obligation to ship on July 31, 1916, the doctrine of waiver stated in the seventh headnote to Lowy v. Rosengrant, 196 Ala. 338, 71 South. 439, is without application; that date and the consequent effect of the contract not being a stipulation for the benefit of the buyer, the plaintiff. The judgment is reversed, and the cause is remanded. Reversed and remanded. ANDERSON, O. J., and SOMERVILLE and THOMAS, JJ., concur.