Oshinsky v. Lorraine Mfg. Co.

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Brief Fact Summary.

The Plaintiff alleged that he tendered “shirtings” in accordance with the terms of the contract, but that Defendants refused to accept delivery of the goods. The rule in a time of the essence contract is that the purchaser is not bound to accept and pay for the goods unless the same are delivered or tendered on the day specified in the contract.

Synopsis of Rule of Law.

The rule in a time of the essence contract is that the purchaser is not bound to accept and pay for the goods unless the same are delivered or tendered on the day specified in the contract.

Facts.

The acceptance for the order for shirtings stated: “they will deliver to you… at the specified dates… Stock: November 15.”  Stock was not tendered to the Defendants until November 16, and they refused to accept the goods.

The trial court ruled that the contract did not necessarily call for deliver on the 15th, and that the jury might find delivery could be “on or about” November 15th.

Issue.

Was the ruling of the trial court erroneous?

Held.

            Yes.  Reversed.

·         The language of the provision was plain, unequivocal and free from ambiguity, and required delivery on the 15th, and not later.

·         The goods were not delivered or tendered until after November 15th, the Plaintiff failed to establish its cause of action, and judgment should have been directed for the Defendants. 

Dissent.

None

Concurrence.

None

Discussion.

·         Time was of the essence in the agreement in this case.

·         A provision for delivery on a specified date requires delivery on such date, and none other.