SAMFORD, J.
The proper disposition of this case turns upon the construction of the contract entered into between the parties, under date of March 1st, as. evidenced by
the various writings, and construed in the light of the facts and circumstances surrounding the parties at the time of the execution of the contract.
[1, 2]
It is elementary law that all of the correspondence and negotiations preceding and relating to the purchase and sale became merged into the writing signed by the one and accepted by the other, except as the same may have been modified by the mutual consent of the parties. Where the terms of a contract are certain, it becomes a question for the court to construe. McFadden v. Henderson, 128 Ala. 229, 29 South. 640; Barnhill v. Howard, 104 Ala. 412, 16 South. 1; Foley v. Filrath, 98 Ala. 176, 13 South. 485, 39 Am. St. Rep. 39.
[3-5]
It will be observed that in the letter written by the defendant, dated March 2d, there was a request that plaintiff advise defendant in about 2 weeks if plaintiff would get the order out within the time named in the contract, and stating that the information was desired for the purpose of chartering, and in the letter of March 7th, the defendant again requested that plaintiff notify it about the 20th to the 25th as to when the order would be ready for delivery. In the letter of February 28th from the plaintiff to the defendant, it was stated “that the delivery on this order was to be sixty days, but if we can furnish sooner, will advise you beforehand.” It will also be noted that in the first letter, requesting notice as to the time of delivery, defendant stated that it might grant a longer time, but, if so, it must have notice in ample time for chartering. To the requests of the defendant the plaintiff made no reply. It is true that these statements are not conditions in the contract, and under the authorities must not' be treated as such. McEadden v. Henderson, supra. Still they must be considered and weighed for the purpose of arriving at the true meaning of the contract at the time it was executed, and as to what the parties themselves understood to be the contract time of delivery, and as fixing the duties of the parties under the contract, and the right of the defendant to be notified as recognized in plaintiff’s letter of March 10th in reply to the request for notice. These requests, while not being a part of the original contract, are important as going to show what construction was put upon the contract by the parties themselves during a timé when they were friendly; it being presumed that the parties to the contract know best what is meant by its terms (6 R. O. L. on Contracts, § 241), and the courts, in construing contracts, are entitled to have all the facts and circumstances going to show the condition under which the parties contracted, and what influenced them, to the end that the contract may be so construed as to give to it such effect, and none other, as the parties intended at the time it was made (6 R. O. L. on Contracts, § 239).
[6]
In this case, we have an unconditional contract to sell and deliver merchandise to a merchant by a merchant at a stipulated price and at a fixed time and place. Time, therefore, is of the essence of the contract. McFadden v. Henderson, supra; Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. 12, 29 L. Ed. 366; 6 R. C. L. on Contracts, § 285.
[7-9]
The court knows the location of Mobile, Ala., and of Carrabelle, Fla., and by common knowledge, that the handling of 350,000 feet of lumber is expensive, and that the chartering of a vessel to transport that much lumber is also expensive. Therefore we conclude from all the facts in this case that it was necessary for the plaintiff to have been ready, able, and willing to make delivery according to the terms of the contract before the defendant could be in default, unless the defendant had waived the time of delivery, or by its own failure placed the plaintiff where it could not comply. 6 R. C. L. on Contracts, § 312; Holt v. U. S. Security Life Ins. Co., 76 N. J. Law, 585, 72 Atl. 301, 21 L. R. A. (N. S.) 691.
[10]
As a general rule, it is settled that where one party is unable to perform his part of the contract, he is not entitled to demand the performance of the contract by the other party. 6 R. C. L. on Contracts, § 325; Johnston v. Mitchell, 1 A. K. Marsh. (Ky.) 225, 10 Am. Dec. 727.
[11]
When all the facts in this case are considered, we conclude that the time of delivery of the lumber was to be within 60 days, that defendant was to furnish and place the vessel, that plaintiff knew that defendant would have to charter a vessel for this purpose, that before defendant could be put in default for a failure to receive, plaintiff would have to notify defendant of its readiness to deliver within the 60 days, as provided by the contract. This notice the plaintiff did not give, but on, the contrary, wrote a letter on April 28th, 2 days before the expiration of the contract, then admitting its unpreparedness to comply, and stating that in 10 days it would be ready to give the order special attention. On May 2d defendant gave notice of its refusal to be further bound, and after that time, plaintiff wrote a letter to the defendant in which it admitted that it would be some 30 days from that time before it could be prepared to make delivery. It will therefore be seen that if defendant had gone to the" expense and trouble incident to the chartering and placing of a vessel, if) would have been useless, and the law does not require the doing of a useless thing. 35 Cyc. 167; 6 R. C. L. on Contracts, § 328.
It may be that under the facts defendant has not placed itself in a position to have maintained an action for a breach, but none the less, the plaintiff has not shown that within the 60 days it had in good faith discharged its duty to the defendant, and was ready, willing, and able to make delivery under the terms of and in the manner re
quired by tbe contract. It is true that on May 4th plaintiff wrote a letter saying that if defendant would furnish a vessel, plaintiff would have the lumber prepared by that time, but that was after the 60 days, and ■ even then plaintiff admitted it was not and had not been in a position to make delivery. The other evidence for plaintiff, to the effect that plaintiff had another mill, and that there were other mills from which plaintiff could have purchased lumber, with which to fill this order, was clearly not within the contemplation of the parties at the time of the making of the contract. The entire correspondence and the dealings between the parties indicate that it was the intention of the parties that the lumber contracted for would be manufactured by the plaintiff at its Carrabelle mill, as rapidly as it could be gotten out, and that it was never contemplated that the lumber should be shipped from other points or should be bought from other parties,' and it was not shown that plaintiff made any effort to procure this lumber, except from the Carrabelle mill.
[12J
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SAMFORD, J.
The proper disposition of this case turns upon the construction of the contract entered into between the parties, under date of March 1st, as. evidenced by
the various writings, and construed in the light of the facts and circumstances surrounding the parties at the time of the execution of the contract.
[1, 2]
It is elementary law that all of the correspondence and negotiations preceding and relating to the purchase and sale became merged into the writing signed by the one and accepted by the other, except as the same may have been modified by the mutual consent of the parties. Where the terms of a contract are certain, it becomes a question for the court to construe. McFadden v. Henderson, 128 Ala. 229, 29 South. 640; Barnhill v. Howard, 104 Ala. 412, 16 South. 1; Foley v. Filrath, 98 Ala. 176, 13 South. 485, 39 Am. St. Rep. 39.
[3-5]
It will be observed that in the letter written by the defendant, dated March 2d, there was a request that plaintiff advise defendant in about 2 weeks if plaintiff would get the order out within the time named in the contract, and stating that the information was desired for the purpose of chartering, and in the letter of March 7th, the defendant again requested that plaintiff notify it about the 20th to the 25th as to when the order would be ready for delivery. In the letter of February 28th from the plaintiff to the defendant, it was stated “that the delivery on this order was to be sixty days, but if we can furnish sooner, will advise you beforehand.” It will also be noted that in the first letter, requesting notice as to the time of delivery, defendant stated that it might grant a longer time, but, if so, it must have notice in ample time for chartering. To the requests of the defendant the plaintiff made no reply. It is true that these statements are not conditions in the contract, and under the authorities must not' be treated as such. McEadden v. Henderson, supra. Still they must be considered and weighed for the purpose of arriving at the true meaning of the contract at the time it was executed, and as to what the parties themselves understood to be the contract time of delivery, and as fixing the duties of the parties under the contract, and the right of the defendant to be notified as recognized in plaintiff’s letter of March 10th in reply to the request for notice. These requests, while not being a part of the original contract, are important as going to show what construction was put upon the contract by the parties themselves during a timé when they were friendly; it being presumed that the parties to the contract know best what is meant by its terms (6 R. O. L. on Contracts, § 241), and the courts, in construing contracts, are entitled to have all the facts and circumstances going to show the condition under which the parties contracted, and what influenced them, to the end that the contract may be so construed as to give to it such effect, and none other, as the parties intended at the time it was made (6 R. O. L. on Contracts, § 239).
[6]
In this case, we have an unconditional contract to sell and deliver merchandise to a merchant by a merchant at a stipulated price and at a fixed time and place. Time, therefore, is of the essence of the contract. McFadden v. Henderson, supra; Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. 12, 29 L. Ed. 366; 6 R. C. L. on Contracts, § 285.
[7-9]
The court knows the location of Mobile, Ala., and of Carrabelle, Fla., and by common knowledge, that the handling of 350,000 feet of lumber is expensive, and that the chartering of a vessel to transport that much lumber is also expensive. Therefore we conclude from all the facts in this case that it was necessary for the plaintiff to have been ready, able, and willing to make delivery according to the terms of the contract before the defendant could be in default, unless the defendant had waived the time of delivery, or by its own failure placed the plaintiff where it could not comply. 6 R. C. L. on Contracts, § 312; Holt v. U. S. Security Life Ins. Co., 76 N. J. Law, 585, 72 Atl. 301, 21 L. R. A. (N. S.) 691.
[10]
As a general rule, it is settled that where one party is unable to perform his part of the contract, he is not entitled to demand the performance of the contract by the other party. 6 R. C. L. on Contracts, § 325; Johnston v. Mitchell, 1 A. K. Marsh. (Ky.) 225, 10 Am. Dec. 727.
[11]
When all the facts in this case are considered, we conclude that the time of delivery of the lumber was to be within 60 days, that defendant was to furnish and place the vessel, that plaintiff knew that defendant would have to charter a vessel for this purpose, that before defendant could be put in default for a failure to receive, plaintiff would have to notify defendant of its readiness to deliver within the 60 days, as provided by the contract. This notice the plaintiff did not give, but on, the contrary, wrote a letter on April 28th, 2 days before the expiration of the contract, then admitting its unpreparedness to comply, and stating that in 10 days it would be ready to give the order special attention. On May 2d defendant gave notice of its refusal to be further bound, and after that time, plaintiff wrote a letter to the defendant in which it admitted that it would be some 30 days from that time before it could be prepared to make delivery. It will therefore be seen that if defendant had gone to the" expense and trouble incident to the chartering and placing of a vessel, if) would have been useless, and the law does not require the doing of a useless thing. 35 Cyc. 167; 6 R. C. L. on Contracts, § 328.
It may be that under the facts defendant has not placed itself in a position to have maintained an action for a breach, but none the less, the plaintiff has not shown that within the 60 days it had in good faith discharged its duty to the defendant, and was ready, willing, and able to make delivery under the terms of and in the manner re
quired by tbe contract. It is true that on May 4th plaintiff wrote a letter saying that if defendant would furnish a vessel, plaintiff would have the lumber prepared by that time, but that was after the 60 days, and ■ even then plaintiff admitted it was not and had not been in a position to make delivery. The other evidence for plaintiff, to the effect that plaintiff had another mill, and that there were other mills from which plaintiff could have purchased lumber, with which to fill this order, was clearly not within the contemplation of the parties at the time of the making of the contract. The entire correspondence and the dealings between the parties indicate that it was the intention of the parties that the lumber contracted for would be manufactured by the plaintiff at its Carrabelle mill, as rapidly as it could be gotten out, and that it was never contemplated that the lumber should be shipped from other points or should be bought from other parties,' and it was not shown that plaintiff made any effort to procure this lumber, except from the Carrabelle mill.
[12J
It is quite clear that the seller waste deliver within 60 days, and that the buyer was to furnish the vessel at such time within the 60 days as would have enabled the seller to make delivery, but it also appears that the time required for furnishing a vessel was from 15 to 30 days, that the plaintiff knew this, and that it would have entailed a useless expense upon the defendant to have provided a vessel before the plaintiff was ready to deliver. Therefore we hold that under the facts and circumstances surrounding the parties at the time of contract, it was the duty of the plaintiff to have notified the defendant of the estimated time at which it would be ready to deliver within -the 60 days so as to enable defendant to furnish and have placed the vessel, according to the contract. The foregoing is in entire accord with the views of Mr. Justice Mayfield, as-expressed in the opinion in this ease on appeal to the Supreme Court. McGowin Lumber & Export Co. v. Camp Lumber Co., 192 Ala. 41, 68 South. 263.
[13]
The defendant was under no duty to place the vessel until plaintiff had notified it of the approximate time within the 60 days in which delivery might be expected, and hence as laid down in 2 Parsons on Contracts (9th Ed.) 769, and the case of Berry v. Nall, 54 Ala. 446, is not in conflict with the views herein expressed. Indeed, in the case of Berry v. Nall, supra, the opinion says:
“The seller in a contract of sale, whose duty it is to get the article sold ready for delivery, and
who, therefore, may designate the time when tlie buyer shall accept and pay for them,” etc.
(italics ours)
■ — recognizes the correctness of the decision in this case that it was the duty of the plaintiff to notify defendant as to when the vessel should be placed. The case of Krebs v. Livesley, 51 Or. 527, 92 Pac. 1084, does not apply, for in this case there is no effort shown on the part of the defendant to rescind before the time for performance began, while in that case there was.
In the case of Lundie v. Cosper, 20 Ala. 123, plaintiff declared on a contract which he himself had breached, and the court held, very properly, that he could not recover, and in the end of the opinion in that case the court said:
“If the contract was,' as the judge assumes and as the evidence conduced to prove, that Cos-per was to start for it on Sunday, and he refused to start until Tuesday, he was the first to violate the contract, and this justified Lundie in abandoning it on his part. See Greene v. Linton, 7 Port. 133 [31 Am. Dec. 707]; Martin v. Chapman, 6 Port. 344; Davis v. Wade, 4 Ala. 208; Pharr & Beck v. Batchelor, 3 Ala. 237.”
[14,15]
In the instant case, under the rule as declared in the case of Berry v. Nall, supra, it being the duty of the plaintiff to designate the time of delivery within the time specified in the contract, the'plaintiff cannot excuse its breach on account of the failure of the defendant to be prepared to receive. Where as in this case, a seller has the option of delivery on any day within a specified time the duty is on the seller to notify the buyer of the time when the buyer must be in á position to receive, and on failure to give such notice, the buyer may treat the contract as abandoned.
[16]
We cannot agree with the contention of appellee that the evidence shows a waiver on the part of the defendant of the 60-day limit for delivery. On the contrary, we are of the opinion that the letters emphasize the importance of the time limit, .and while defendant did say that it would extend the time 15 days, sucn extension was only to be granted upon request and notice which was never applied for or given, and in the testimony for plaintiff by its then manager, it appears that defendant suggested a delay which the plaintiff did not agree to.
We therefore conclude as follows:
First. The contract is one for delivery within 60 days, and, being a specified term limit, expires at that time.
Second. The seller having the option of delivery at any time within the 60 days, the duty was on him to notify the buyer of the time of delivery, when the buyer must be in a position to receive, and on a failure to give such notice within the time, the buyer may treat the contract as abandoned.
Third. In order for the plaintiff to be in a position to recover, it must have performed its duty under the contract, and have been ready, willing, and able to make delivery under the contract at the time designated by it within the 60 days.
It is unnecessary to notice all of the rulings of the court on the former trial, but for the rulings in conflict with the foregoing
opinion, the judgment of the lower court is reversed, and the cause is remanded.
Reversed and remanded.