Plaintiff the Salt Lake Wet Wash Laundry, brought this action to recover damages for breach of contract, and alleges in substance as follows: That on August 26, 1940, plaintiff and defendant entered into a written contract whereby plaintiff purchased from defendant 100 barrels of refined tallow at $3.25 per hundred weight; that plaintiff made a down payment of $250 and agreed to pay for the balance "as ordered out." That pursuant to the contract on November 23, 1940, December 19, 1940, January 28, 1941 and June 23, 1941, plaintiff ordered and received from defendant a total of 38 barrels. That on June 30, 1941, contrary to the contract, defendant notified plaintiff that it would not deliver any more tallow at the contract price, whereupon plaintiff went into the open market and bought 62 barrels of tallow and agreed to pay therefor 8 1/2c or a total of $2,108, to plaintiff's damage in the sum of $1,250, and ask for judgment in that sum.
The defendant filed a general demurrer and also demurred specially on the ground that it cannot be ascertained from the complaint the time within which plaintiff was obliged to order the tallow. Both demurrers were overruled. Defendant by its answer admitted making an oral contract of sale of 100 barrels of tallow at $3.25 per hundred weight, which plaintiff agreed to order at the rate of eleven barrels per month, all of them to be delivered within 9 months from the date of entering into the contract. Defendant further admitted the delivery of 33 barrels of tallow under the contract. Defendant counterclaimed for the reasonable value of five barrels of tallow delivered June 23, 1941, and alleged that $7.50 per hundred weight was a reasonable value. On the trial the court awarded plaintiff judgment for $1,006.36, with interest at the rate of 8% per annum both before and after judgment, from September 5, 1941. From that judgment defendant appeals.
Defendant contends that both of its demurrers were well taken. The complaint alleges no time limit within which *Page 387 the tallow must be delivered. It only alleges that the balance was to be "paid for as ordered out" and that is the only provision on that question contained in the contract. This infers that delivery was to be made on order of the plaintiff, and both parties have so interpreted it. There is no time provided in the contract within which the tallow must be ordered or delivered. Where the time element is uncertain the law requires that the goods must be ordered and delivered within a reasonable time, and what is a reasonable time depends on the facts and circumstances.
In order to state a cause of action on a contract the complaint must allege the time within which it must be performed. Where, as here, the contract does not expressly provide such time, the pleader must allege what time is a reasonable time within which to perform. 17 C.J.S., Contracts, p. 1, 2 1179, § 547; 4 Bancroft, Code Pleading, 4103, § 2287;Whitelaw v. Vallance, 60 Mont. 172, 198 P. 449; Evankovich v. Howard Pierce, Inc., 91 Mont. 344, 8 P.2d 653; Pope v.Terre Haute Car Mfg. Co., 1887, 107 N.Y. 61, 13 N.E. 592;Osborne v. Lawrence, 9 Wend., N.Y., 135; Brunner v.Mobile-Gulfport Lumber Co., 188 Ala. 248, 66 So. 438; WinfieldLumber Co. v. Partridge, 202 Ala. 437, 80 So. 821; Caner v.Owners' Realty Co., 33 Cal. App. 479, 165 P. 727; Barnes v.Barker, 113 Neb. 113, 202 N.W. 430; Radford Grocery Co. v.Jamison, Tex. Civ. App. 1920, 221 S.W. 998. Most of these cases are on slightly different facts but all are to the effect that where an act is to be done under the terms of a contract, and no time is expressly provided for the doing of such act, the law requires that the act must be done within a reasonable time, and under such circumstances in order to state a cause of action the pleader must allege as an ultimate fact what time is a reasonable time. This the plaintiff failed to do and the demurrer should have been sustained.
The only issue raised by the pleading and apparently the only one determined by the court was on the question of what were the terms of the contract. This issue the court *Page 388 determined in favor of the plaintiff. There was no finding on the question of whether the plaintiff had 3 failed to order the goods within a reasonable time. Under the law if it did so fail then the defendant was under no obligation to deliver the tallow thereafter. This issue was not raised by the pleadings nor determined and as far as appears from the record was not considered. The defendant was entitled to have this issue raised by the complaint, and to have the judgment of the court thereon. The court erred in not sustaining the demurrers.
But one other point need be noticed. Defendant assigns as error the allowance of 8% interest on the damages found, from Sept. 5, 1941, to date of judgment. 4 Plaintiff admits that under Sec. 44-0-1, Utah Code Anno. 1943, only 6% was allowable. If a judgment is awarded on the retrial this should be corrected.
The judgment is reversed, with directions to the trial court to sustain the demurrers to the complaint and allow plaintiff to amend its complaint, and to allow such other pleadings as may be necessary. Costs to appellant.
LARSON, McDONOUGH, and MOFFAT, JJ., concur.