Longley and Roger H. Loughran, both of New York City, of counsel , for appellant. Crandall, of New York City, of counsel , for appellee. As between Nozaki and the libelant the contract was never in fact performed, because the goods were not shipped in June, July, or August, as the agreement required. The libelant could have rejected them, even if they had finally gone forward and reached New York, for time was of the essence, and the breach was in limine.
Jones v. United States, 96 U. Wright, U. Lorraine Mfg. Blake, 97 N. Shand 2 App. Compton Wegimont, [] 3 K. A possible contention may be made to the contrary, based on the clause of the indorsement on the back of the contract which provides:. And there is no provision anywhere permitting the issue of a bill of lading before the goods are actually shipped. The most that indorsement No.
What the purpose of such a provision can be is hard to say, but it certainly cannot be thought to have been to change a contract which set a definite limit for the date of shipment into an agreement requiring nothing more than "delivery for shipment" to the carrier within the time.
Such an interpretation would contradict the requirement of shipment before a certain date, and would render the time when the goods were likely to arrive doubly uncertain. Nor can indorsement No. It only provided that the merchandise should be at the risk of the purchaser after the seller had made delivery to the carrier, and had nothing to do with the obligation of the seller to ship by the agreed date.
If Nozaki failed in that obligation, he had not performed his contract, and there was no obligation on the part of the libelant to take or pay for the goods. It is quite evident from the foregoing that the contract between libelant and Nozaki required shipment not later than August 31, , and that the letter of credit purchased by the libelant corresponded with the terms of the contract and called for a bill of lading of like date showing such shipment.
