Kleiman v. Orion Knitting Mills

Offutt, J., delivered the opinion of the Court. The appellants, who are engaged in the City of Baltimore in the purchase and sale of cotton and woolen goods as “jobbers,” on January 15th, 1920, ordered from the appellee, a. manufacturer of such merchandise located at Kinston, Worth Carolina, sixty dozen pairs of stockings at six dollars per dozen. The contract of sale provided that the articles purchased were to be shipped to the appellants at Baltimore in March, but it also contained this, provision: “This order is not subject to cancellation except by agreement. Seller shall not be held liable for late or non-delivery caused by strikes, fires or other causes beyond our control.

The acceptance by railroad or other carrier shall constitute delivery. These goods ⁵⁵² shall not be returned, nor will allowance be made for any cause after five days from receipt. All terms of sale and deliveries are set forth on this copy of order. If not in exact accordance with conditions agreed upon, it must be returned for correction within five days from its receipt.

This order is given and accepted subject to a limit of credit determinable at any time by Mfg. or Seller. Delivery dates mentioned are approximate only.” The stockings were not shipped until May 19th, 1920, and did not arrive at their destination until June 29th, 1920. In the meantime the appellants had received from the appellee a bill for them and, in reply to that demand, they wrote the appellee on May. 31st, 1920, that they would return “the goods” as soon as they received them, because “the order was placed” for “March 1st” delivery and because they had never received an acknowledgment of it. To this letter the appellee replied that it had not shipped the goods sooner because of labor troubles, and that it had not acknowledged the order because it had been accepted by its duly accredited agent, and no further acknowledgment was needed.

After some further correspondence between the parties, which failed to affect their respective positions, this suit was brought by the appellee for the purchase price of the stockings. The verdict and judgment being for the plaintiff, the. defendants took this appeal. In addition to the facts to which we have referred, the uncontradicted evidence showed that the delay in shipment was due to a shortage of labor and material, and to a congestion of transportation facilities, which prevented the appellee from securing supplies necessary for the manufacture of the articles sold to the appellants, and that all of-these causes were beyond the appellee’s control. It also appeared that it was necessary for the appellants to have the goods ordered “around the month of March so that” they could make immediate deliveries for the spring of the year, and that since they failed to receive the merchan ⁵⁵³ clise ordered from the appellee at that time they had to go out and buy other goods.

The important question presented by the appeal is whether these facts were legally sufficient to entitle the plaintiff to recover, and that question is the subject of the sixth and seventh exceptions. The sixth exception refers to the court’s refusal of a prayer offered by the defendants at the close of the plaintiff’s case, in which the court was asked to direct a verdict for the defendants on the ground that there was no evidence legally sufficient to support the plaintiff’s claim. After the refusal of this prayer, the defendants proceeded with their case and offered testimony in support of their contentions. In doing that they waived this exception to the court’s ruling on their prayer, and it cannot be reviewed in this Court.

Wilkin Mfg. Co. v. Melvin, 116 Md. 108 ; Barabasz v. Kabat, 91 Md. 55 ; New York, P. & N. R. Co. v. Jones, 94 Md. 35 ; United Rwys. Co. v. Deane, 93 Md. 624 . The subject of the seventh exception is the court’s! refusal to grant a similar prayer at the close of the whole case.

The appellants contend that this prayer should have been granted because the goods were not shipped within the time stipulated in the contract of sale. It is well settled that time is of the essence of commercial contracts! of the nature of that sued on in this ease (Penn Oil Co. v. Triangle P. & G. Co., 136 Md. 574 ) and, if the contract had contained no provision as to the time other than that the shipment was to be made in March, the appellants would have had the right to cancel the contract and refuse the shipment, since it was not made within that time. But the contract provides expressly that “delivery dates mentioned are approximate only,” and since both parties executed it and are bound by its terms, the only question is whether under those conditions it can be said as a matter of law that a delay of forty-nine days was sufficient to warrant the defendants in cancelling the contract and refusing to accept the goods, and the answer to that question turns ⁵⁵⁴ largely upon the meaning to be given the word “approximate.” Literally the word means,“near to,” and in ordinary usage it is equivalent to “about,” “a little more or less,”' “close.” Oxford