Williams S. S. Co. v. McLeod Lumber Co.

NETERER, District Judge. While in mercantile contracts time is of the essence (Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. 12, 29 [928] L. Ed. 366), the statement that the vessel would load “about June 2d” and “about June 5th” is a mere representation, and not a warranty (Hawes v. Lawrence et al., 4 N. Y. 345), and while “about” is i comprehensive term, and when used with regard to time may cover a considerable extent (James v. State, 40 Tex. Cr. R. 190, 49 S. W. 401), and has no definite trade meaning (Bennett v. Lingham [D. C.] 31 Fed. 85; Massari v. Forest Lbr. Co. [D. C.] 290 Fed, 470), it does not signify that time is immaterial, but only that the precise date is not warranted (Sanders v. Munson, 74 Fed. 649, 20 C. C. A. 581; Connell Bros. v. H. Diederichsen & Co., 213 Fed. 737, 130 C. C. A. 251). The libelant may not enlarge the time of the indefinite term “about” by repeated use. The indefinite term “about” was construed by the libelant on May 30th to be “about June 12th,” and was not objected to by the respondent. This construction fixed the time, and June 12th must be held a warranty (The Texandrier, A. M. C. 1923, p. 722), and when the libelant, on June 8th, advised respondent that the vessel would .not be ready to load until June 18th, the respondent thereupon declined the space, and was absolved from the 'charter agreement. The exceptions to the amended libel are sustained.