LORENZO SHIPPING VS.

BJ MARTHEL
443 SCRA 163
November 19, 2004

FACTS: Petitioner Lorenzo Shipping is engaged in coastwise shipping and owns the cargo M/V Dadiangas Express. BJ Marthel is
engaged in trading, marketing and
selling various industrial commodities. Lorenzo Shipping ordered for the second time cylinder lines from the respondent stating the
term of payment to be 25% upon delivery, the balance payable in 5 bi-monthly equal installments, no again stating the date of the
cylinder’s delivery. It was allegedly paid through post dated checks but the same was dishonored due to insufficiency of funds.
Despite due demands by the respondent, petitioner falied contending that time was of the essence in the delivery of the cylinders
and that there was a delay since the respondent committed said items “ within two months after receipt of fir order”. RTC held
respondents bound to the quotation with respect to the term of payment, which was reversed by the Court of appeals ordering
appellee to pay appellant P954,000 plus interest. There was no delay since there was no demand. 

ISSUE: Whether or not respondent incurred delay in performing its obligation under the contract of sale 

RULING: By accepting the cylinders when they were delivered to the warehouse, petitioner waived the claimed delay in the delivery
of said items. Supreme Court held that time was not of the essence. There having been no failure on the part of the respondent to
perform its obligations, the power to rescind the contract is unavailing to the petitioner. In determining whether time is of the essence
in a contract, the ultimate criterion is the actual or apparent intention of the parties... there must be a sufficient manifestation, either
in the contract itself or the surrounding... circumstances of that intention.[29] Petitioner insists that although its purchase orders did
not specify the dates when the cylinder liners were supposed to be delivered, nevertheless, respondent should abide by the term of
delivery appearing on the... quotation it submitted to petitioner.[30] Petitioner theorizes that the quotation embodied the offer from
respondent while the purchase order represented its (petitioner's) acceptance of the proposed terms of the contract of sale.[31]

Thus, petitioner is of the view that these two documents "cannot be taken separately as if there were two distinct contracts."[32] We
do not agree.

Petition is denied. Court of appeals decision is affirmed.