
    No. 526
    FOREST CITY MOTOR CO. v. STUART
    Ohio Court of Appeals, Cuyahoga County
    No. 4241.
    March 5, 1923
    This opinion has not been published except in Abstract.
    CONTRACTS — (1) Time not-essence of contract ta sell automobile in absence of specific provision-® (2) A function of jury to determine reasonable time- — (3) Burden-of proof on party breaking contract to show excuses for delay — (4) Purchaser may reject automobile if not in good order at time of attempted delivery — (5) Measure of damages.
    Error to the Municipal Court of Cleveland.
    Affirmed.
    Attorneys — Quigley & Burns, for The Motor Co.; Ralph Blue, for Stuart.
   LEVINE, J.:

Epitomized Opinion

Vickery, Sullivan and Levine, JJ.

Stuart ordered a Saxon motor car from the Motor Co. delivery to be'made “on or about May 17, 1920” and at the same time delivered to the Motor Co. a Cole sedan as part payment, the value of the Cole being fixed at $900. The Motor Co. failed to deliver the Saxon at the specified time, although Stuart made frequent demands. On July 3 of the same year the Motor Co. attempted to deliver a Saxon outomo-bile which Stuart refused to accept on the ground that it was not in good running condition. Stuart then demanded the return of the Cole and upon being informed that it had been sold he demanded payment* of $900. Upon the refusal by the Motor Co. to pay® he brought action in M. C. and judgment was given for him. Held by the Court of Appeals:

1. Time was not the essence of the contract, as there was no provision in the contract itself making the date of delivery the essence of the same and containing in addition the language “on or about May 17.”

2. It was within the province of the jury to determine whether in view of the lapse of time an attempted delivery was a substantial, compliance with the contract.

3. In order to excuse the delay the burden rested on the Motor Co. to show good reasons for the delay.

4. If on the date of delivery the car that is sought to be delivered is not in good working or running order the purchaser is within his rights to refuse to accept the same.

5. Although the price allowed by a dealer on a used car when taken in Trade is often in excess of the real value of the car, the measure of damages must be taken as of the agreed value of the used car in the absence of any-other method of determining value.  