The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1906-09-27
ELLIOTT v. HowIsoN.
Action for Breach of Contracted Deci
ed April %. 1sos.)--(40 SO. Re
lO12l

ed April 2s. 1sos.)--t4O So. Rep.
| 101S.)
| /. Sales; contract; offer and accept
ance-- Where seller offered to sell 500
pine piling, 10 inches in diameter at
| small end, forty feet long, at "a each
(. o. b. cars, to be paid for as delivered,
and the buyer accepted. stating that
/ the piles should be 10 inches In diame-
ter at small end and practically
straight, this constituted an executory
contract of sale.
O. Same; performance--The contract
is not shown to have been performed
| SO as to compel the buyer to take the
piling, until 1t Is shown that the seller
offered to fulfil by loading round pine
piling forty feet long and ten inches at
small end.
g. Same: action to enforce contract;
defenses--Under an executory contract
| of sale the fact that the articles ten
dered did not conform to the provisions
of the contract is a valid defense to
suit by the seller to enforce the con-
tract.
L. Same; RECESSION: time; restoration
| OF goods Where a buyer seeks to re-
scind a contract of sale for failure of
seller to fulfil his part of the undertake
| ing, he must act within a reasonable
time after failure of seller to perform;
and IL goods have been shipped. which
do not conform to the specifications OF
the contract after examination, they
must be returned or offered for returu
within a reasonable time.
5. Same; breach of contract; action
for; plea; sufficiency off, Where the
complainant alleges that the buyer
agreed to receive number of pine Pill
ing of stated dimensions and pay a
specified sum therefor, and that the
buyer had refused to pay for any of
the piling although large part of
them had been delivered to him and the
seller was ready and willing to de-
liver tn rest of them under the con-
tract. a plea which alleges that a cer-
tain number of the pillng shipped did
not conform to the contract. and that
the seller pointed out other piling to
the buyers agent. which the seller pro-
posed to ship under the contract. and
which did not come UP to the contract
as to diameter and otherwise, Is not
demurrable for failing to deny that the
seller was ready and willing to deliv-
er the piles in accordance with the con-
tract.
6. Contracts; time OF performance
Where the contract dots not specify the
time within which 1t is to be perform
ed. time is ordinarily not of the es-
sence Of the contract. unless 1t follows
naturally from the circumstances of the
case. and the party on whom rests the
duty of performance must have rea-
sonable time within which to discharge
his obligations.
T. Sales; action for breach: defen-
SEES; pleas; suff1ciency of--A plea to an
action for breach of contract which al
leges the seller agreed to ship a GER
tain number of piling of a certain size
and condition: that the seller shipped a
part of the piling, which did not con-
form to the terms of the contract; that
the buyer refused to accept them and
notified the seller of his refusal; that
subsequently the buyers agent visit
ed the seller, who showed said agent a
large number OF piling which he pro-
posed to ship under the contrac; that
all of said piling so exhibited did not
conform to the contract that the buyer. |
en- being informed by his agent OF this,
terminated the contract, and so notified
the seller and went into the market and
purchased other piling, Is demurrable
for failure to aver that the seller was
allowed a reasonable time after notice |
of the buyers purpose to rescind. with |
in which to perform the contract.
s Contracts; RECESSION: notice. |
Where a contract is rescinded without
mutual consent. notice of the RECESSION |
must be brought to the other party and |
a reasonable time allowed. after such |
rotice. for compliance. |
g. Sales; actions for breach: pleas: |
suficiency OLA plea to an action for |
breach OF an agreement to buy GER
tain number of piles, which alleges that |
the seller agreed to deliver the pilings
within ten days from the MAX
ing of the contract. that "a
part OF the piling delivered did |
not come up to the contract. and that
the other piling delivered did not come
up TO the contract, and that the other
piling that the seller proposed to de-
liver under the contract did not comply
with the contract. and that the buyer
notified the seller OF his intention to re-
scind the contract, is not subject to de-
murrer that the seller was not given a
reasonable time within which to per-
form his undertaking after notice of
RECESSION. Nor are such pleas subject
to demurrer on the ground that they
confess that the buyer Is indebted to
the seller for goods sold and no facts
are alleged in avoidance
10 Contracts; written contracts;
modification; validity--The terms of a
written executory contract may be mod
flied by subsequent agreement be-
tween the parties, and Is valid as
founded upon mutual assent of the par
ties. without other consideration
IL Sales; delivery: acceptance; in
spection- Where goods of a particular
description arc ordered 10 be sent by
carrier, the buyer may receive and in
spect them to see II accodlng to con-
tract. without making same an accept
ance, so long as the buyer can con-
sistently object to them as failing to
como up to contract specifications.
e. Same; RECESSION; time--A buyer
will be considered as having accepted
goods shipped him, unless within a
reasonable time. he notifies the seller
that the goods are not according to con-
tract and of his refusal TO receive them.
10. same; Acceptance; jury question: