Action of assumpsit by Allen P. Howison against J. D. Elliott. There are five counts in the complaint. The first is based upon an account due on the 1st of September, 1900; the second is the common count for merchandise, goods, and chattels alleged as having been sold by the plaintiff" to the defendant on, to-wit, the 1st day of September, 1900; while the third, fourth, and fifth counts each claim damages for the breach of a sale contract alleged to have been entered into on the 13th day of August, 1900, between plaintiff and defendant. In the fifth count it appears that the contract was in writing and in the form of a proposition and acceptance.. The contract is set out in haec verba in this count, and is as follows, to-wit:
“Randolph, Ala., Aug. 13th, 1900.
“Mr. J. D. Elliott, Hickory, N. C. — Dear Sir: I will furnish you three hundred (300) round pine pilings, .10 inches at small end and forty (40) feet long, at four dollars ($4.00) each f. o. b. cars on Sou. Ry. Co.’s tracks, and you to pay me for them as delivered.
“Yours truly, Allen P. Howison, Rrand.”
“Randolph, Ala., Aug. 13th, 1900.
“Mr. Allen P. Howison, Randolph, Ala. — -Dear Sir: I accept your proposition of this date to furnish the three hundred pilings-f. o. b. cars on Sou. Ry. track at four dollars ($4.00) each. The above pilings to be ten (10) inches in diameter at small end and to be practically straight. To be paid for as delivery is made.. Yours truly, J. D. Elliott. H. T. Elliott. Ship to Southern - Railway Co., care J. D. Elliott, Mobile, Ala.”
There can be no doubt that the proposition and acceptance constituted a valid executory contract of sale between the parties. — Berry v. Fall & Duxberry, 54 Ala. *583446. Mr. Benjamin says, in Ms work on Sales: “When the vendor sells an article by a particular description, it: is a condition precedent to his right of action that the thing which he offers to deliver, or has delivered should answer the description.” — Benjamin on Sales (6th Ed.) § 600. In the case at bar the description was made a part of the contract. It is of the very essence of the undertaking, and at least imports a warranty that the piles winch the seller would deliver under the contract should comply with the description. “Otherwise the buyer could contract for one thing and the seller deliver another and different thing.” So the description Avas essential to the identity of the things sold, and before the buyer could be cdmpelled to take piles offered in fulfillment of the contract it Avould have to be shOAvn that they conformed to the description in the contract. — Burnett v. Stanton & Pollard, 2 Ala. 182; Davis v. Adams, 18 Ala. 264; Berry v. Nall & Duxberry, 54 Ala. 446; Gachet v. Burch, 72 Ala. 288; Nesbitt v. McGehee, 26 Ala. 748; Penn. v. Smith, 98 Ala. 560, 12 South. 818; Frith v. Hollan, 133 Ala. 583, 32 South. 494, 91 Am. St. Rep. 54; Morse v. Moore (Me.) 22 Atl. 362, 13 L. R. A. 224, 23 Am. St. 783; Pope v. Allis 115 U. S. 363, 6 Sup. Ct. 69, 29 L. Ed. 393; Wolcott v. Mount, 36 N. J. Law, 262, 13 Am. Rep. 438; White v. Miller, 71 N. Y. 129, 27 Am. Rep. 13; Benjamin on Sales (6th Ed.) §§ 600, 645, 888. “It is a Avell-settled rule of Mav that wiien a contract is dependent — that is, AAiien one agrees to sell and deliver and the other to pay on delivery — in order to entitle either party to sue for a breach, he must sIioav that he Avas able and ready to perform his part of the agreement, or that he had performed.” — Davis v. Adams, 18 Ala. 265; Nesbitt v. McGehee, 26 Ala. 748; Berry v. Nall & Duxberry, 54 Ala. 446; Kirkland v. Oates, 25 Ala. 465; Drake v. Goree, 22 Ala. 409; O’Neal v. Reynolds, 42 Ala. 197; McGehee v. Hill, 4 Port. 170, 29 Am. Dec. 277; Allen v. Green, 19 Ala. 35; McFadden v. Henderson, 128 Ala. 221, 29 South. 640; Aarnes v. Windham, 137 Ala. 513, 34 South. 816; Porter v. Rose, 12 Johns (N. Y.) 209, 7 Am. Dec. 306; 9 Cyc.,p. 643, (III) note 60. The exigencies *584of the case do not require that we should, distinguish between warranty and conditions precedent. “That there is a warranty, or a condition precedent amounting to a warranty, in the contract, there can be no doubt. It is immaterial, for the present purposes, whether it he regarded as an express warrant or an express condition implying warranty, as the effect must be the same and no essential difference of remedy follows from it.”— Morse v. Moore, supra.
The question of importance here is, are the third and fourth pleas well pleaded as pleas of rescission with respect to the specified grounds of the demurrer leveled against them? In executory contracts of sale, “when there is a warranty that has been broken, or when the article tendered in performance of the contract does not conform to the stipulation, either of these furnishes ground of defense to any suit by the seller brought to enforce the contract.” — Eagan Co. v. Johnson, 82 Ala. 237, 2 South. 302; Hodge & Williams v. Tuft, 115 Ala. 366, 22 South. 422; Benjamin on Sales (6th Ed.) § 888;-3 Parsons on Contracts (7th Ed.) bottom of page 222. Generally where one fails to perform his part of the contract, or does an act which shows conclusively that he did not intend to perform his undertaking, the law Avon Id authorize the other party to put an end to the contract. — 2 Parsons on Contracts (7th Ed.) p. 678; Drake v. Goree, 22 Ala., on page 415. But to effect rescission the party seeking the advantage of it must act with promptness and Avithin a reasonable time. In this respect, if goods have been shipped to him, Avhicli, on examination, do not conform to the stipulation, he must return or offer to return them. “An offer to return the chattel in a reasonable time, on the breach of warranty, is equivalent in its effect upon the remedy to an offer accepted by the seller, and the contract is rescinded.”— Burnett v. Stanton & Pollard, 2 Ala. 182; Sheffield Land Co. v. Neill, 87 Ala. 158, 6 South. 1; Carmelich v. Mims, 88 Ala. 335, 6 South. 913; 3 Parsons on Contracts (7th Ed.) marg. p. 208.
While it is made, to appear by the pleas that the de*585fendant did not accept or appropriate tlie 32 piles shipped, it is obvious from the facts averred in tlie pleas that the defendant did not, if he could have done so, rely solely upon the failure of the piles shipped to conform to the description in the contract as the ground foi- rescission, but upon the further facts averred in the pleas with respect to tlie deficiency of the piles pointed out to his agent on the 28th of August. The plaintiff pointed out 100 piles to defendant’s agent, which the plea avers, with the exception of 5 or 6, were, less than 10 inches in diameter at the small end, and which the plaintiff said he had cut and would ship under said contract. The jileas further show that the defendant was in urgent need of piles contracted for to complete a contract he had with the Southern Railway Comjiany, which fact the jileas aver the plaintiff well knew, and on being informed by liis agent of the size of the jiiles, which plaintiff said he would ship, the defendant elected on the 1st of September, to rescind the contract, and so notified jilaintiff, and purchased 300 piles from another party. The third ground of the demurrer is addressed to the jileas as an answer to the third count of the comjilaint. The substance of the demurrer is that it appears from the “complaint” that the plaintiff was ready and willing to deliver the said jóles in accordance with said contract, and this fact is not denied in the jileas, and it is immaterial whether he delivered, or ivas jirepared to deliver, other jiiles in addition thereto, and which did not accord with said contract, and this fact is not denied in tlie pleas, and it is immaterial whether he delivered, or was prepared to deliver, other piles in addition thereto, and which did not accord with said contract. The demurrer takes no notice of the averment in the jileas that the jilaintiff had cut and would ship, the' 100 piles under the contract. The plain meaning of this is that the jilaintiff would ship the piles in performance of the contract. And the statement in the demurrer that “it is immaterial whether he delivered, or was jirepared to deliver, other piles in addition thereto, and which did not accord with said contract, or not,” we think, is not re*586ferable to anything on the face of the pleas, and is not aided by the averments of the third count of the complaint. It does not appear in the pleas, nor is it averred in the third count of the complaint, that the plaintiff intended that the 100 piles pointed out would be delivered in addition to piles of contract description sufficient to complete the contract. And it is worthy of notice in this connection that the third count does not attempt to describe the piles, and under its averment a tender of round piles would have been prima facie sufficient. Plaintiff had already shipped 32 ¡files that did not conform to the description in the contract, as described in the pleas, and had been notified of their nonacceptance— of their rejection. Yet, as the plea discloses, in the face of that non-compliance with the contract, he pointed out to defendant’s agent the 100 ¡files under contract size, accompanied by the statement that he had cut and would ship them under the contract. The contract’ was an executory one. Up to this time, looking to the pleas, no part, of it had been performed. We think the facts pleaded authorized the defendant to draw the conclusion, and act upon it, that the defendant did not intend to perforin his undertaking. At least, the pleas were not subject to the third ground of the demurrer. — Drake v. Goree, 22 Ala. 409; Bonham v. State, 65 Ala. 456; McFadden v. Henderson, 128 Ala. 221, 29 South. 640; Hieronymous Bros. v. Bienville W. S. Co., 131 Ala. 448, 31 South. 31.
The second ground of the demurrer is addressed to the pleas as answers to each, count of the complaint. It is in this language: “And the plaintiff demurs to each of said pleas, pleaded to each count of the complaint, because it does not appear from the said plea that the plaintiff failed or refused to deliver to the defendant the piling provided for by the contract within a reasonable-time from the date thereof, or has promised or contracted to deliver the same within any time specified in the contract.” Where a contract is silent as to the time within which its conditions or stipulations are to be performed, time is not ordinarily deemed to go to the es*587sence of the contraed, unless it naturally follows from the circumstances of the case. And the party upon whom the duty of performance rests must be allotved a reasonable time within which to discharge his obligations under the contract. — McFadden v. Henderson, 128 Ala. 221, 29 South, 640, and authorities there cited. With respect of the third plea, we do not think the facts alleged therein are sufficient to show that time was of the essence of the contract. And, as was said in McFadden v. Henderson, supra, quoting from the case of Monroe v. Reynolds, 47 Barb. (N. Y.) 579: “It is held that, in all cases where time is not necessarily of the essence of the contract, the seller, if lie wishes to have the contract either performed or abandoned, must go further, and by some demand, offer on his part, or notice, put the purchaser to a refusal to perform, before he can treat the contract as Inning been rescinded by the purchaser. Mere neglect to perform by the day generally is not sufficient.” The same rule is applicable to the buyer. Further, it was said in the McFadden Case, quoting from Higby v. Whittaker, 8 Ohio, 201, which had reference to the rescission of a sale of land: “The law requires some positive act by the party who would rescind, which shall manifest such intention, and put the opposite party on his guard, and then give a reasonable time to comply; but it requires eagerness, promptitude, ability, and disposition to perform by him who would resist the rescission of his contract.” It seems to be. the rule of our court, then, that where the rescission is not by mutual consent, and the opposite party has not repudiated the contract, to effect rescission, notice of the rescission must be brought home to the opposite party and reasonable time must be given him after the notice to comply. So, as far as the third plea is concerned, we are of opinion that it mas subject to the second ground of the demurrer, as it cannot be- said that it appears from its averments that a reasonable time after the notice given to plaintiff of defendant’s purpose to rescind was allowed to the plaintiff in which to perform his undertaking. —Carmelich v. Mims, 88 Ala. 335, 6 South. 913.
*588With respect to the fourth plea, it is there alleged that the plaintiff agreed to deliver the piling within 10 days from the making of said contract: This, taken in connection with the other averments in the plea, exempted it from the second ground of the demurrer. We have not overlooked the fact that the contract is fully set out iu the fifth count of the complaint; that it is in writing and contains no specification of time within which the piles were to he delivered or in which the contract was to be performed by the plaintiff. This question, however, is not presented by the demurrer. Moreover, the written executory contract may have been modified or altered by the subsequent written or parol agreement between the parties founded upon no other consideration than the mutual assent of the parities. — Robinson v. Bullock, 66 Ala. 548.
Other points have been made in the argument with respect to the insufficiency of the pleas, but they have no support in the grounds of demurrer assigned, and we are not authorized to consider defects not presented by the demurrer. The pleas make clear the fact that the only cause of action the plaintiff has against the defendant is founded on the contract mentioned in the pleas. It cannot be said that the pleas do xxot deny liability, or that they do not aver a breach of the. contract on the part of the plaintiff. . They expressly aver facts which show there was no delivery of any of the piles coixtracted for. Hence it cannot be said that they confess the matters alleged in either the second or third counts of the complaint.. Upon these considerations it must be held that the first axxd fourth groxxnds of the demurrer were not well assigxxed. The demurrer to the fourth plea should have been overruled.
While the delivery to a common carrier under contracts of sale like the one here involved is deemed prixxxa facie a delivery to the consignee, and the carrier thxxs becomes, impliedly, the agent of the consignee to receive and transport the goods at his risk, yet, if goods of a particular description are ordered to be sent by a carrier, the buyer may receive them to see whether the goods *589answer Iris order or not, and this would he no acceptance of the goods as long as the buyer can consistently object to the goods as not answering the order. “It follows from this that a receipt of goods by a carrier, though a sufficient delivery to the purchaser, is not an acceptance, by him, so as to bind the contract; for the carrier, if he be an agent to receive, is clearly not one to accept the goods. — Benjamin on gales (6th Ed.) §§ 140, 1 (SO, 703; Caulkins v. Hellman, 47 N. Y. 449, 7 Am. Rep. 401; Cross v. O’Donnell, 44 N. Y. 661, 4 Am. Rep. 721; Pierson v. Crooks, 115 N. Y. 549; Fountain v. Bush, 40 Minn. 141, N. W. 465, 12 Am. St. Rep. 722; Johnson v. Cuttle, 105 Mass. 447, 7 Am. Rep. 545; Jones v. Mechanics’ Bank, 29 Md. 287, 90 Am. Dec. 533; Robinson & Ledyard v. Pogue & Son, 86 Ala. 261, 5 South. 685. Ordinarily the question of acceptance is one of fact for the jury, upon all the evidence. — Garfield v. Paris, 96 U. S. 563, 24 L. Ed. 821; Hinchman v. Lincoln, 124 U. S. 38, 8 Sup. Ct. 309, 31 L. Ed. 337.
Where goods received are not according to the contract, it is the buyer’s duty, within a reasonable time, to notify the vendor of that fact, or he may be considered as accepting. But the notice to the vendor need not necessarily point out the defects in the goods, especially when they may already be known to the vendor. — Benjamin on Sales (6th Ed.) p. 690, American note, and authorities cited there. The evidence without conflict showed that a car of 32 piles which did not correspond with the particular description of the piles ordered by the defendant were delivered to the Southern Railway at the point whence the piles were to be shipped on the 22d day of August, 1900, and the car arrived at Mobile on the 25th of August. On the evidence (which avüI be set out in the report of the case) we think the question of acceptance vel non of the first car of piles Avas one for the jury under appropriate instructions by the court. With respect to the piles which plaintiff’s evidence tended to show were shipped after the first shipment, it cannot be reasonably said that the plaintiff was entitled to the affirmative charge. The court erred in giving the *590affirmative charge requested by the plaintiff.
The contract stipulates that the piles Were to be delivered f. o, b. cars on Southern Railway tracks and were to be paid for as delivered. They were to be shipped to the Southern Railway Company, care of J. D. Elliott, Mobile, Ala. On the trial the question as to whose duty it was to furnish the cars, the buyer’s or seller’s arose, and the defendant asked the court in writing to instruct the jury that it was the duty of the seller to procure the cars upon which the piles were to be delivered. In the case of Sheffield Furnace Co. v. Hull Coal & Coke Co., 101 Ala. 446, 14 South. 672, this court held that the courts take judicial knowledge of the fact that the letters “f. o. b.” cars, as they are used in contracts of sale, mean “free on board” the cars, and that this means free of expense to the buyer. But the preci.se question now presented has not been definitely determined by this court, although the reason employed in the case last cited would seem to lead to a conclusion in support of defendant’s contention that the duty rested upon the plaintiff to procure the cars. . Appellant’s counsel have cited the cases of Boyington v. Sweeney, 77 Wis. 55, 45 N. W. 938, and Chicago Lumber Co. v. Comstock, 71 Fed. 477, 18 C. C. A. 207, which hold that it is the duty of the purchaser under such contracts to procure the cars. The Pennsylvania court also seems to have held against the appellant’s contention, as may be seen by examining the cases of Kunkle v. Mitchell, 56 Pa. 100, Dwight, v. Eckert, 117 Pa. 508, 12 Atl. 32, and Hocking v Hamilton, 158 Pa. 107, 27 Atl. 836. See, however, Miller v. Seamon, 176 Pa. 291, 35 Atl. 134; Baltimore & L. R. Co. v. Steel Rail Supply Co., 123 Fed. 655, 59 C. C. A. 419. The Supreme Court of Wisconsin has repudiated the ruling made in the latter case of John O’Brien Lumber Co. v. Wilkinson, 117 Wis. 468, 94 N. W. 337, and in the still later case of Vogt v. Shienebeck, 100 N. W. 820, 67 L. R. A. 756. 106 Am. St. Rep. 989. In the case last cited, the court, in an opinion by Marshall, J., after reviewing the former decisions on the subject, .reached the conclusion that the letters “f. o. b.” *591when cun ployed in sale contracts, unless it is otherwise stipulated, by necessary implication impose on the seller the duty of obtaining the cars upon which the shipments are to be made. To the same effect is the ruling in Cincinnati S. & C. R. Co. v. Consolidated Coal & Min. Co., 7 Ohio Law J. 209. It will be discovered from an examination of the opinion of Judge Marshall, that the case of Sheffield Furnace Co. v. Hull Coal & Coke, Co., 101 Ala. 440, 14 South. 672, is there extensively and favorably commented upon. In the case at bar the seller undertook to accomplish the delivery of the things sold free on board the cars. We think it comports with reason to hold that by'necessary implication he agreed to supply all means to accomplish such results — the cars upon Avhich the shipments of piles were to be made. This ruling is supported, too, by the evidence, which tended to show that the seller did procure the cars that -were used, and the lack of any evidence tending to show that he ever applied to the buyer to aid him in getting cars, though the evidence does show that the buyer did proffer his assistance to the seller in his efforts to get cars. We are at the conclusion that the court erred in refusing charge 11 asked by the defendant.
What constitutes a material part of a contract is a question of law for the court. Charges 2, 3, and 4, requested by defendant, [were each defective, in that they each referred the question to the jury for determination.
It was open to the jury to find from the evidence that some of the piles were accepted by the defendant. If they were, the plaintiff was entitled to recover their value. Charg 5 pretermitted this proposition, and was for that, if no other, reason properly refused.
There was no evidence that the piles were to be delivered in 10 days from the 13th of August, and charge 6, requested by' defendant, for hypothesizing this fact, was properly refused. The defendant sought to make proof of the fact, but was not allowed by the court to do so.
Charge. 7 was properly refused. It invaded the province of the jury.
There was evidence from which the jury might have *592inferred a waiver on the part of tlie defendant of time. This was not regarded in charge 8, requested hy defendant, and for this reason, if no other, it was properly refused.
If the court erred in sustaining the objection made by the plaintiff to defendant’s question to plaintiff, “Did you not swear in that paper [referring to depositions of plaintiff that Avere taken in the case] at that time that you had about 214 pine piling 10 inches in diameter?” It was error without injury, as the paper (the deposition ) Avas subsequently introduced as a part of the evidence Avithout objection.
The only relevancy the fact that defendant’s witness Wooley made a contract Avith defendant to furnish defendant Avith poles could have had Avas Avith respect to Wooley’s interest as a witness. The court erred in alloAving the. question, “With what percentage of heart in it?” propounded to Wooley. The matter called for was irrelevant.
We think it Avas both relevant and material to sIioav that the plaintiff stipulated to deliver the piles Avithin 10 days. If he did so subsequent to the execution of the contract in Avriting, which contained no stipulation as to tiim», it Avould be binding on the plaintiff. Parties may modify or add to a written contract by a subsequent parol agreement. The question relating to this matter Avas leading, but the plaintiff, by making specific objections, must be held to have waived all others. The court erred in sustaining the objections made to the question. — Robinson v. Bullock,, 66 Ala. 548.
It Avas competent to shoiv by the Avitness H. T. Elliott the circumstances attending the unloading of tlie car load of piles in Mobile, and in this connection that tlie railroad company required the piles to be unloaded. Such evidence was relevant and material with respect of acceptances Ami non of the car of piles. The question calling for this character of evidence from Aiitness H. T. Elliott Avas leading, but this objection was Avaived by the specific objections assigned to the question.
*593For the errors pointed out, the judgment is reversed, and the cause remanded.
Reversed and remanded.
Haralson, Dowdell, and Anderson, JJ., concur.,