Fortson Grocery Co. v. Pritchard Rice Milling Co.

WILLSON, C. J.' (after stating the facts as above). [1] The assignment, attacking as unauthorized by the testimony the finding of the trial court that by the terms of the contract the grocery company “was to furnish shipping instructions before” the milling company “was to ship or deliver the car of rice,” is overruled. Not only was there testimony which warranted the finding, but the grocery company in its petition alleged that by the terms of the contract it was to “appoint the time for the delivery” of the rice. [2] The assignment, attacking on a like ground the finding that it was the intention of the parties when, to wit, December 20, 1916, the milling company acquiesced in the request of the grocery company for “a little more time” in which to move the rice, that shipping instructions should be furnished the former company within a reasonable time thereafter, also is overruled. The milling company having admitted in its pleadings that it acquiesced in the grocery company’s request for more time in - which to furnish shipping instructions, and the additional time not being specified otherwise than as “a little more time,” the trial court had a right, and perhaps was bound, to say that the parties meant that the shipping instructions were to be furnished within a reasonable time after the milling company granted the grocery company’s request. 2 Elliott on Contracts, § 1628 ; 3 Elliott on Contracts, § 1877. The court below found, and the finding is not attacked in the assignments, that the act of the grocery company in furnishing the milling company shipping instructions March 30, 1917 (more than three months after it requested and the milling company granted it “a little more time” in which tó move the rice), was not performance by it of its undertaking to furnish such instructions within a reasonable time. The court further found that the parties did not agree on a cancellation of the contract, and that the milling company did not give the grocery company “notice of its intention to rescind the contract.” *1118 It appears, therefore, that the case presented by the record is that the grocery company, being bound by the contract to furnish the milling company shipping ( instructions within a reasonable time after December 20, 1916,' failed to do so, whereupon the milling company, without notice to the grocery company of its intention to do so, treated the contract as no longer binding on it. Whether on the case so presented the judgment in favor of the milling company was warranted depends (1) on whether the milling company was bound, before it was entitled to treat the contract as no longer binding on it (not to notify the grocery company of its intention to treat the contract as a,t an end as the grocery company seems to contend it was, but) to demand of the grocery company that it furnish the shipping instructions, and (2) if it was, whether it appeared that it had made such a demand. [3] If, as the grocery company assumes to be true, the milling company waS in the attitude of having waived the default of the grocery company in failing to furnish the shipping instructions within the time, to wit, 10 days, fixed by the usage and custom the court found to exist, we are inclined to agree with it in its contention, if it is that the milling company did not have a right to treat the contract as at an end until after it had demanded performance by the grocery company, and that company had failed to comply with the demand within a reasonable time. As, however, we are of the opinion it appeared that the milling company in its letter of December 20 demanded performance by the grocery company of its undertaking to furnish shipping instructions, it is not necessary that we should decide the question. If said letter should be construed, as it was by the parties and the trial court, as a grant to the grocery company of a reasonable time after its date in which to furnish the shipping instructions, we think it also should be construed as a demand that the grocery company furnish the shipping instructions within that time. The letter was in reply to one of December 19 by the grocery company saying it was “very crowded at present,” quoting, “and will thank you to give us a little more time in which to move this car,” and was as follows: “Your favor of the 19tb received. Note that you are very much crowded for room at the present time and requesting that we delay shipment. We are also crowded for room ourselves, and will be glad if you will furnish us shipping instructions at the earliest opportunity.” [4] Construed in the. light of the circumstances of the case and the rule of law the grocery company invokes, we think the fair meaning of the last clause in the letter, to wit, “will be glad if you will furnish us shipping instructions at the earliest opportunity,” was, and that the grocery company should be held to have understood it to be, a demand on it to furnish the shipping instructions within a reasonable time after it received the letter. Before that time the milling company had repeatedly demanded of the grocery company that it comply with its undertaking to furnish the shipping instructions, and, clearly, the grocery company was in default because of its failure to do so. The .milling company would have been within its rights had it then refused to recognize the contract as any longer binding on it. The effect of the letter in question was, we think, to advise the grocery company that it would instead treat the contract as binding on it, but would expect the grocery company to furnish the shipping instructions within a reasonable time thereafterwards. As we view it, there is no error in the judgment, and it is affirmed. Footnotes [1] For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes