Gibbs v. H. T. Henning Co.

Stephens, P. J. 1. A provision in a contract for the sale of junk which is located upon a lot of the seller, that the buyer “will remove the entire accumulation in sixty working days beginning not later than February 23, 1937,” is to the effect that the buyer shall. remove the accumulation at any time within sixty working days after February 23, [668] 1937, and it is not a requirement that the buyer must begin the removal not later than February 23. Where the buyer did not begin the removal not later than February 23, and did not offer to remove the accumulation until March 1, when he notified the seller that he could remove the accumulation within sixty working days from February 23, 1937, the buyer did not breach the contract in failing to begin the removal not later than February 23. The seller was not justified in refusing to permit the buyer to remove the accumulation, and the seller’s refusal amounted to a breach of the contract. Decided February 26, 1938. Rehbaking denied Maboi-i 29, 1938. W. K. Miller, H. A. Woodward, for plaintiff in error. Lee, Gongdon & Fulcher, contra. 2. In a suit by the buyer against the seller to recover for a breach of the contract by the defendant in refusing to permit the plaintiff to remove the junk, the petition set out a cause of action, and the court did not err in overruling the demurrer. Judgment affirmed. Sullon aivd Felton, JJ., concur.