Eichelbaum v. Bishop

Opinion by Trexler, J., The plaintiff sold to the defendant a carload of scrap iron on December 20, 1918. We are convinced after a careful reading of the testimony that the plaintiffs duty to ship the iron began on December 31, 1918. It was then that the permit was received and the amount to be shipped was definitely settled. On January 7, 1919, the defendant cancelled the order.. The plaintiff insisted that the contract must be kept. The question ’therefore is, “Was there an unreasonable delay in shipping the scrap so as to relieve the defendant from accepting it, and permitting him to cancel the contract?” The written contract between the parties calls for the furnishing [530] of the scrap “as soon as we can secure permit required.” We do not think that this required the plaintiff to exercise extraordinary efforts to ship the car. All he was obliged to do, was to perform his part within a reasonable time. The standard that he had to follow was that there be no unreasonable delay. The words “as soon as” and “unreasonable” are not to be taken in all cases in their absolute sense, and generally mean with reasonable promptness. In construing them regard must be had to the circumstances of the particular case. Such terms have a relative meaning according to the thing done: Ephrata Water Company v. Ephrata Boro., 20 Pa. Superior Ct. 149; Battenfeld v. Kline, 228 Pa. 91. The judge who tried the case without a jury concluded that under the circumstances of this case the plaintiff was not in default, and in this there was no error. There was testimony that it took four to six days to obtain a car after the permit arrived, and that the plaintiff began to load the car in question for shipment at the earliest possible moment. Some of these facts appear from the correspondence of the parties. The probative force of the letters is small, but as they were received without objection and apparently both parties were willing to recognize the statements contained therein, it is now too late to object to what may be called self-serving declarations contained therein. We need give but passing notice to the assertion of the defendant that the plaintiff was required to give the car numbers. In one of the telegrams plaintiff said, “Wire shipping instructions at once and we will advise you car numbers.” The written contract, however, contains no such requirement. The failure to give the numbers did not contribute to the delay in the shipment, and it is very evident that the necessity of the defendants having the car numbers would not arise until the car reached its destination, and in any event until it was started on its journey. [531] One witness testified that a certain time was required in normal times to get a car after the permit was received. This witness bad knowledge of tbe subject in general, but be was not on tbe ground at tbe time when tbe shipment was made. He testified that tbe time in which tbe transactions in tbis suit occurred were abnormal, as tbe country was at war, and tbe court stated that tbe difficulty in getting a car would be greater than usual. Tbe propriety of tbe admission of tbis testimony may be doubted, but it does not constitute reversible error. Tbe correspondence of tbe parties shows that tbe witness’ estimate of tbe time required to get a car conformed with tbe actual experience of tbe plaintiff in tbis very case. , We think tbe case was properly decided, and that there was sufficient evidence to sustain tbe judgment of tbe trial judge. Tbe assignments of error are overruled and tbe judgment affirmed.