The opinion of the court was delivered by: SMITH
This is a civil action in which the plaintiffs seek to recover the purchase price of a certain machine, to wit, $ 27,225. The action is before the Court at this time on two motions: a motion for judgment on the pleadings, filed by the plaintiffs, under the Federal Rules of Civil Procedure, Rule 12(c), 28 U.S.C.A., and a motion for summary judgment, filed by the defendant, under the Federal Rules of Civil Procedure, Rule 56, 28 U.S.C.A. The former is supported by the affidavit of one of the plaintiffs, and the motion will therefore be treated as one for summary judgment.
The plaintiffs allege: (1) the execution of a written contract for the manufacture and sale of a certain machine, identified as a 'Buttom Stem Machine'; (2) the completion of the machine; (3) the tender of delivery 'in accordance with the said' contract; (4) the refusal of the defendant to accept delivery; and (5) the refusal and failure of the defendant to make payment. The defendant admits the execution of the written contract but denies the other allegations; the denials are not reiterated in the affidavit filed by the defendant, and it may be inferred, at least for the purpose of this motion, that the defendant refused to accept delivery of the machine and failed to make payment. The principal defense urged by the defendant, both in its answer and on the present motions, is a breach of contract by the plaintiffs to wit, the failure of the plaintiffs to make delivery within the time fixed.
The contract contains a specific provision as to 'dates of delivery.' This provision, as we construe it, required delivery of the 'Buttom Stem Machine' in November 1947. It should be noted that the time fixed for delivery, to wit, eight months, is consistent with the time fixed by the plaintiffs in a letter dated February 24, 1947 (Exhibit B, annexed to the affidavit of Semion S. Cherniakov); it is therein stated, 'Delivery is changed to 8 months.' The authenticity of this letter is not disputed.
The machine was not completed and the delivery thereof was not tendered until the spring of 1948; the exact date when delivery was tendered is uncertain but it would seem to be after March 23. The defendant refused to accept delivery at that time but expressed a willingness to waive the delay and accept delivery if an 'export license' could be obtained from the Office of International Trade of the Department of Commerce. The 'export license' was not obtained and the defendant refused to accept delivery of the machine.
The exportation of the machine, although apparently not subject to regulation when the contract was executed, was made subject to regulation on March 1, 1948. It appears from a cursory examination of the regulation that the exportation of the machine was prohibited unless the export was licensed by the Office of International Trade of the Department of Commerce. This fact, however, is unimportant and we state it only because one of the defenses interposed by the defendant is based upon it.
It is out opinion that the only issue here raised is one of law, to wit, the construction to be given the contract. As a fundamental principle of construction, the contract must be construed as a whole; the provisions must be read together and so construed, if possible, so as to render none of them meaningless. The present contract presents no real problem; its provisions are clear and unambiguous.
It is argued by the plaintiffs, first, that the time of delivery was not of the essence, and second, that if the time of delivery was of the essence the condition was waived. It is argued by the defendant that the time of delivery was of the essence and that there was no waiver of ...