Conceding, without deciding, that, with respect to the delivery of the several installments of logs, the date of such deliveries being fixed by the reasonable demands of the defendants, time was of the essence of the contract, yet we think it is perfectly clear that neither of the assignments of breach, as set out in the complaint, was subject to the demurrer.
(1) As to the first installment, it Avas the duty of the defendants to call for and accept a delivery to be made not later than January 1st, and the call should have been made not later than December 4th. The complaint alleges that the defendants notified the plaintiff as late as December 26th that they did Avant any of the logs which the plaintiff was then preparing to deliver as a first installlment in compliance Avith the contract.This being true, the plaintiff was, as to this installment, relieved of the primary obligation to deliver' in accordance with the demand of the defendant: and thereafter the plaintiff-was authorized to make the delivery under the general provision of the contract at *377any time “betunen the 1st day of November, 1913, and the 1st day of April, 1914.” We hold that the defendants having breached their own obligation in the premises could not, by their demand made on December 26th, impose upon the plaintiff the duty of delivering this installment within four weeks of that date and, further, that the tender of this installment on February 2nd was a compliance by the plaintiff with the obligation then resting upon it, as modified by the prior default of the defendants.
(2) As to the tender of the second installment, the •demurrer makes the point that, the designated transport not being ready on the exact date to receive and load the logs, it was the duty of the plaintiff to tender the logs to the defendants themselves. It is obvious, however, that the provision that, if there were no vessel in port ready to receive any installment, “the said logs shall thereafter be held and handled entirely at the expense of the said H. Curjel & Co., Avho must accept and pay for the same in all respects as though die-livery had been made f. a. s. at Mobile,” was intended for the protection of the plaintiff alone; and Ave hold that the allegations of the complaint show a full compliance by the plaintiff Avith his obligations under the contract. We think, moreovei’, that even had the designated steamer been ready to receive the logs on February 23rd, a delivery to the steamer on February 27th would, under all the circumstances, have constituted prima facie a substantial compliance with the contract.
The judgment of the trial court will be reversed, and a judgment will be here rendered overruling the demurrer to the complaint.
Beversed, rendered, and remanded.
Anderson, C. J., and Mayfield and Gardner, JJ.j concur.