Harris Chemical Co. v. Tunnell & Co.

Citations

• 261 Pa. 72
• 104 A. 398
• 1918 Pa. LEXIS 689

Syllabus

<p>Contracts — Sales — Refusing to perform — Cancellation of contract — Construction—Intention.</p> <p>In an action for the breach of an executory contract for the sale-of 300 tons of potash to be delivered f. o. b. cars shipper’s works, in carload lots of not less than fifteen tons as ordered by buyers, brought by the buyer against the seller, it was provided “Buyers to give the seller reasonable notice of all shipments wanted. Final shipments under this contract to be completed by May 30, 1915, and any balance unshipped on the latter date through failure of buyers to furnish' instructions, may, at the option of the sellers, be either shipped on this contract or cancelled.” By supplemental contract dated May 21,1915, the time for the delivery of the potash was “extended until and completed by July 1, 1915, instead of May 30, 1915, as given in the original contract.” It appeared that one month after the contract was made, defendant shipped to plaintiff fifteen tons of potash, that plaintiff never ordered further shipment until June 30th following and none was meanwhile shipped. On June 30th, plaintiff advised defendant that it had assigned the contract to a third party. The representative of the assignee delivered notice of the assignment to defendant on the morning of June 30th; and at four o’clock in the afternoon, the assignee and plaintiff made demand on defendant for the balance of the potash which was refused. It appeared from all the evidence that there was not left sufficient time between four o’clock and twelve o’clock midnight in which to make delivery of all the potash f. o. b. cars, shipper’s works. The lower court subrditted the case to the jury which found a verdict for plaintiff upon which judgment was entered. Held, that as defendant did not have sufficient time to make delivery of the entire balance of tons called for by the contract, before its expiration, the defendant was justified in cancelling the contract and the plaintiff was not' entitled to