The Sale of Goods Act (Ont. s. 12; U. K. s. 10) provides; 12. - Unless a different intention appears from the terms of the contract, stipulations as to time of payment are not deemed \o be of the essence of a contract of sale. Whether any other stipulation as to time is of the essence of the contract or lot depends on the terms of the contract.

In the United Kingdom it is further provided, by sub-s. 2, that in a contract of sale "month" means prima facie calendar month. In Ontaric it is provided by the Interpretation Act, R.S.O. 1914, c. 1, s 29, that in every statute, unless the context otherwise requires, "month" shall mean calendar month.

In Hartley v. Hymans, [1920] 3 K.B. 475, at pp. 483-4, McCardie J., referring to the foregoing section, said:

This section gives a very slender notion of the existing law, and it is well to remember s. 61 (2) [Ont s. 58 (1)] which provides (inter alia) "The rules of the common law, including the law merchant, save in so far as they are inconsistent with the express provisions of this Act . . . shall continue to apply to contracts for the sale of goods."

Now the common law and the law merchant did not make the question whether time was of the essence depend on the terms of the contract, unless indeed those terms were express on the point. It looked rather to the nature of the contract and the character of the goods dealt with In ordinary commercial contracts for the sale of goods the rule clearly is that time is prima facie of the essence with respect to delivery: see per Lord Cairns L.C., in Bowes v. Shand, 1877, 2 App. Cas. 455, 463, 464 (sale of rice) ; per Cotton L.J., in Reuter v. Sala, 1879, 4 C.P.D. 239, 249, (sale of pepper) ; and per Lord Esher M.R., in Sharp v. Christmas, 1892, 8 Times L.R. 687 (sale of potatoes). In Paton v. Payne, 1897, 35 S.L.R. 112, however, it was held by the House of Lords that in a contract for the sale and delivery of a printing machine time was not of the essence. This point is not fully dealt with in Benjamin on Sale, 5th ed., pp. 588 ft, and no general rule appears to be stated in that treatise. But in Blackburn on Sale, 3rd ed., pp. 244 ff., the matter is more clearly treated and it is laid down that "In mercantile contracts, stipulations as to time (except as regards time of payment) are usually of the essence of the contract." I may add that the relevant decisions on the point are exeellently summarized in Hals-bury 's Laws of England, vol. 25, p. 752, . . . With the above text books may be contrasted the passage in Addison on Contracts, 11th ed., p. 543.

Now if time for delivery be of the essence of the contract/as in the present case, it follows that a vendor who has failed to deliver within the stipulated period cannot prima facie call upon the buyer/to accept delivery after that period has expired. He has himself failed to fulfil the bargain and the buyer can plead the seller's default and assert that he was not ready and willing to carry out his contract. That this is so seems clear. It is, I take it, the essential juristic result when time is of the essence of the contract. See also Willis, Sale of Goods, pp. 125-127; Chalmers, Sale of Goods, 7th ed. 1910, pp. 33, 207. As to time of delivery of goods, see chapter 6, 63.