majority">WALKER, P. J.

When, during the trial, evidence Avas introduced tending to sIioav that a vital part of the machinery for the price of Avhich the suit Avas brought had been left out of the initial shipment, the defendant proposed to file special pleas, setting up the failure of the plaintiff to ship the machinery in its entirety Avithin a reasonable time. Thereupon the plaintiff insisted that evidence on that subject, if admissible at all, could properly be brought in under the general issue, and, as stated in the bill of exceptions, “agreed that said matters could be brought in under the general issue.” We construe that agreement, made under the circumstances stated, as a waiver by the plaintiff of any requirement of further pleading on the part of the defendant to enable him to avail himself of a ground of defense based upon a failure of the plaintiff to comply with the terms of the sale as to the time Avithin Avhich the shipment should be made. Such requirement of further pleading by the defendant Avas one which the plaintiff could Avaive. Having admitted the sufficiency of its adversary’s pleading to let in the defense proposed to be set up, the plaintiff is precluded from now claiming that that ground of defense Avas not available to the defendant under the pleadings as they stood. It cannot here be heard to impute error to the action of the trial court in that regard, to Avhich it formally consented.

Following some correspondence between the parties in reference to plant-spraying machinery in which the plaintiff dealt, the defendant, on June 4, 1906, inquired of the plaintiff by wire as to how soon it could ship a designated spraying outfit, to which the plaintiff replied on the same day by wire that it could ship immediately from stock the machinery inquired about. On June 7th the defendant telegraphed to the plaintiff to “ship quick to Reids, Ala,” the designated machinery, and “to rush *320and trace. L. & N. prepay.” The plaintiff made a shipment to the defendant the next day; but there was evidence tending to show that an essential part of the machine, without which it was useless to the defendant, was not shipped until more than a month later, and that a result of this delay was that defendant was deprived of the use of the machine in spraying his growing crop. It is not to be doubted that in such a sale, made at such a time, of a machine intended for use in protecting some, growing crop, time was of the essence of the contract. In such a case, the buyer is not liable if delivery is not made within the time agreed on.—Jones v. United States, 96 U. S. 24, 42 L. Ed. 644; 35 Cyc. 175. The acceptance of the defendant’s order by wire imposed upon the plaintiff the duty of making a prompt shipment. There was evidence before the jury to warrant a finding that that duty was not performed. This being true, the general affirmative charge requested by the plaintiff was properly refused.

The principal ground upon which it is insisted in argument here that the trial court was in error in overruling the plaintiff’s motion for a new trial is that the verdict must have been based upon evidence as to a matter of defense which was not covered by the defendant’s pleading.- As suggested above, the plaintiff is in no position to urge the insufficiency of the defendant’s pleading to present the defense that, as to the time of shipment or delivery, the contract of sale was not complied with by the plaintiff. The plaintiff in effect took issue on that ground of defense without replying to it. The bald question presented was as to whether there had been such compliance, and the evidence on the subject was in conflict. It can not be affirmed that the trial court was in error in overruling the motion for a new trial.

Affirmed.

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