Tbe findings of fact declare tbat tbe defendants ordered, in writing, from plaintiff certain phonograph Edison signs, at tbe price of $80, to be shipped to defendants on 1 July. Tbe goods were not shipped by plaintiff until 9 July, and arrived at Lenoir 14 July, when defendant refused to accept them. His Honor held tbat “time in this case is not of tbe essence of tbe contract to such an extent as to make shipment on 9th July a failure to comply with tbe contract and permit defendants to reject tbe shipment.” In this ruling there is error.
*537It is generally beld tbat if tbe contract specifies tbe time wben delivery is to be made, time is of tbe essence of tbe contract; and if delivery is not made within tbe time agreed on, tbe buyer is not liable.
Mr. Elliott states tbe rule to be tbat “Time is usually of tbe essence ■of an executory contract for tbe sale and subsequent delivery of goods where no right of property in tbe same passes by tbe bargain from tbe vendor to tbe purchaser, and tbe rule in such cases is tbat tbe purchaser is not bound to accept and pay for tbe goods unless tbe same are delivered or tendered on tbe day specified in tbe contract.” Elliott on Contracts, sec. 1552.
Tbe rule is stated by tbe Supreme Court of tbe United States as follows: “In a mercantile contract, a statement descriptive of tbe subject-matter or of some material incident, such as tbe.time or place of shipment, is ordinarily to be regarded as d warranty or condition precedent upon tbe failure or nonperformance of which tbe party aggrieved may repudiate tbe whole contract.” Fitley v. Pope, 115 U. S., 213; Norrington v. Wright, 115 U. S., 188.
Upon tbe facts found, judgment should be entered for defendant.
Reversed.