Judgment of the Court
J.-The sole question upon this appeal is whether or not the plaintiff's action was prematurely brought.
I concur in the arguinent of the learned counsel for the appellants that nothing was by the contract made payable for the timber expressed to be lying at John's Island until delivery thereof. The true construction of the first paragraph of the contract if it had stood alone was, as I think, that the appellants undertook to pay per thousand feet of that timber delivered free of charge, but in that contract if it had so stood no time was fixed for the delivery of the timber further than that it was agreed that it should take place " within ten days from the time the ice is advised J. as clear out of the harbour," the second paragraph was therefore inserted in the contract which provides that,
" settlement to be finally made inside of 30 days in cash less-2 per cent for dimension timber which is at
John's Island."
This is the paragraph which was relied upon as giving to the appellants 30 days of grace for payment of the price after delivery of the timber, but it does nothing of the kind; what the paragraph was introduced for Was manifestly to define more precisely the time for delivery of the timber than by the expression
" within ten days from the time the ice is advised as clear of the harbour," and it expresses the mutual agreement of both parties to the contract, namely, that everything necessary to a final settlement of the contract by both parties, namely, delivery by the one and payment by the other, shall be made inside of 30 days from the date of the contract.
For delivery after that date, and consequently for payment in the event of delivery after that date, the contract makes no provision. If the non-delivery within the 30 days was by reason of the respondent's default the appellants had their action for breach of contract; but having accepted a delivery of the timber after the expiration of the 30 days named in the contract within which it was to be delivered, for which event the contract made no provision, it is preposterous to hold that the appellants had by the contract 30 days after delivery, after the expiration of the time named in the contract for delivery, for payment of the price of the timber delivery of which was so accepted.
For such an event it is plain that the contract made no provision, so no question as to the action having been premature within the terms the contract could arise.
The appeal mast be dismissed with costs.
Appeal dismissed with costs.