majority">Wilson P. J.

We have reached the conclusion that this judgment must be reversed. The order for the brushes expressly provided that they were not to be shipped before Feb. 20th-Appellees, in contravention of the order, shipped them February 12th, eight days before the time specified. By the acceptance of the order and appellees undertaking to act under it, it became a contract between the parties for the purchase of goods to be delivered by the seller at a future designated time. At law, time is of the essence of such a contract, and performance by the seller according to its terms, unless waived by the buyer, is a condition precedent to his right to sue for the price of the goods. 1st Parsons on Con. 444-6; Chit. Con. 517, et seq. The seller can no more claim performance, by a tender of the goods before the time stipulated, than by tendering them after the time. And in an action at law when the question is whether a party has performed a contract requiring in terms performance at a fixed day, the court can not say that the time of performance is immaterial, for the parties have made it material. Hill v. School Directors, 17 Me. 316. If a day be fixed for delivery in the future, the seller must keep the thing sold until the time for delivery; and if the parties are distant from each other, the seller must follow the directions of the buyer. These principles are elementary. 1 Parsons, supra.

A case much in point reported in 1 L. R. Q. B. Div. 470, is Shand v. Bowes. There the defendant bought of the plaintiff 600 tons of rice, to be shipped at Madras for London, during the months of March and April. The rice was in 8,200 bags, of which 7,120 were shipped between the 23d and 28th of February, and the last bill of lading was signed on the latter day. Of the other 1,080 bags, 1,030 were put on board February 28th, and the remaining 50, March 3d, and the bill of lading was signed on the latter day. The defendant having refused to accept the rice, it was held that as nine-tenths of the rice was shipped in February, the defendant was not bound to accept it. That case was a stronger one for the plaintiff than the present one, for there a portion of the rice was shipped in March, as stipulated in the contract.

The express condition of the order being that, the brushes were not to be shipped before February 20th, it is not for the court to say that appellants, in imposing such condition, may not have had in view the greater danger of loss or delay in transportation on a shipment made before that time than on a shipment made after that time; it is sufficient that the parties fixed the time of their contract.

But it is insisted by appellees that appellants waived their right to object to the prematureness of the shipment by placing their subsequent refusal to accept on the ground that the brushes did not seasonably arrive. We are unable to coincide in this view. By shipping the goods before the time agreed upon, appellees committed a breach of their contract, and such breach was not occasioned by any act or omission on the part of appellants. Appellees, at the time of the breach, were not misled by any supposed waiver of the condition in relation to the time of shipment, and because appellants subsequently, under an erroneous belief that the delay in the arrival of the goods was caused by a failure to ship them in. time, complained that they had not arrived in season, and assigned that as a reason for refusing to accept them, it by no means follows that this constituted a waiver. And even had appellants known all the facts, it would not alter the case, for the breach of the condition of the contract in respect to the time of shipment was already complete, and appellees could main tain no action on the contract, whatever reasons appellants might thereafter assign for refusing to accept the goods, or though they should assign no reason. 7 Ad. & E. 650; 5 Exch. 110.

The judgment of the court below must be reversed, and the cause remanded.

Reversed and remanded.

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