Young v. Rocha

California Court of Appeal Dec 20, 1923 No. Civ. No. 2615.Published

Before: Finch

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Holding. The court held that the plaintiff's failure to deliver goods by the date specified by the defendants constituted a breach of contract, as time was of the essence in this commercial transaction and the delay could not be cured.

Issues

Whether the plaintiff was obligated to ship goods on the specific date requested by the defendants.
Whether time was of the essence in the contract for the sale of goods.
Whether the defendants waived their right to object to the late delivery by failing to specify that objection at the time of the attempted tender.

Disposition. affirmed

Quotations verified verbatim against the opinion

“When defendants thereafter fixed the date for the first shipment at October 1st, that date became a part of the order as much as if it had been originally inserted therein.”

“In the contracts of merchants time is of the essence.”

FINCH, P. J.

The jury returned a verdict in favor of defendants and judgment was entered accordingly. Plaintiff moved for a new trial, which was denied. This appeal is from the judgment. Plaintiff is the assignee of Lewis Simas Jones Company. For convenience, the company will be hereinafter referred to as plaintiff. The action is for damages alleged to have resulted from defendants’ breach of the following contract:

[17]

“Order No. 225. Date June 15, 1920.

“Ship to Farmers Store at Areata, Cal., ... 2 cars copra meal per ton 47 f. o. b. S. F. Shipping dates to be given later. To be taken before Dec. 30th, 1920.

“Fabmebs Store by Manuel Rocha, Mng.”

By mutual consent of the parties, the words “Eldorado meal” were later substituted in the order for the words “copra meal.” September 6, 1920, Rocha wrote plaintiff: “I . . . ask you to send me a car on the first of October and the other car on the first of December. ’ ’ September 8th plaintiff wrote in reply: “We have your letter of September 6, and in accordance with your instructions will ship you a 30 ton car of Eldorado Cocoanut Meal about the 1st of October, and a 30 ton car about the 1st of December.” In anticipation of receipt of the car of meal at the time ordered, the Farmers Store sold a car of Eldorado meal to one of its customers to be delivered October 1st. October 4th this customer canceled the order because the meal was not delivered to him at the time ordered. Rocha thereupon, on October 4th, wrote plaintiff: “This is to advise you, if you have not already sent the car of cocoanut, not to send it for the reason that I cannot sell it because the price has gone down so much that I have not been able to sell any that I have had on hand and from what I see, the price is going down lower and lower. Therefore I ask you to please cancel my order and let me know what you decide to do.” The plaintiff received this letter October 6th, at which time it had not yet made the shipment, nor did it at any time make any shipment to the defendants. The plaintiff made no reply to the letter but placed the matter in the hands of its attorneys, who wrote Rocha, according to the latter’s testimony, “and says there is a carload to ship, and if I don’t accept I have to stand the damages.” October 18th Rocha again wrote plaintiff, saying: “Once more I write you asking you what can be done so that I do not lose so much on the cocoanut which I ordered, because I asked you to cancel not so much on account of the price but because I could not sell it on account of Nilsen selling cheaper than I could buy it. . . . See what you can do, so that you do not lose and I do not lose because I do not want a lawsuit with anybody.” The parties not having succeeded in reach

Young v. Rocha

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FINCH, P. J.

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