78 Ill. App. 69 | Ill. App. Ct. | 1898
delivered the opinion of the court.
First. Plaintiffs testified they had had such a trip in vie.w in December previous, but had abandoned that purpose, and made this trip solely in reliance upon their contract with Bouse, Hazard & Co. The written proposition, signed by Bouse, Hazard & Co., apd accepted by plaintiffs, begins by' stating that Bouse, Hazard & Co. are advised plaintiffs contemplate a trip west, taking in California, Arizona, Hew Mexico, Htah and Colorado. We think the recitals of the contract better proof on that subject than the views plaintiffs now entertain as to what their purpose then was, and therefore we are of opinion they made this trip for their own pleasure.
Second. We are of opinion the written contract means that the sample wheels were to be furnished at Peoria, where the contract was made, and where the parties then were. If so, the prior conversations w.ere merged in the writing and the later conversations were without consideration. If this view is correct, no contract is shown binding Bouse, Hazard & Co. to ship the bicycles to Phoenix, nor to deliver them at any particular date.
Third. But if Bouse, Hazard & Co. were under obligations to make the later shipment of bicycles within seven days from the date of the contract, and to send them to Phoenix, and were therefore guilty of a technical breach thereof, still plaintiffs did not take the course entitling them to substantial damages. They'had .part of the samples and had their printed matter and instructions. They should have either gone to work with such material as they had and accomplished whatever they could, or they should have waited the arrival of the other samples. They did neither. Although they received the- telegram sent on the 19th, advising them the Sylph had been shipped on the 12th, which they did not know was a mistake but must have supposed to be true, yet they immediately, on the 20th, wired Bouse, Hazard & Co: abandoning the contract. We are of opinion that terminated their right to recover more than nominal damages.
Fourth. They could not recover their expenses on this trip under this contract, which expressly provided that Eouse, Hazard & Co. were to be at no expensé. We are not called upon to determine whether they could have recovered for their time and expenses at Phoenix while waiting for the other bicycles, for they decided not to wait. They lost whatever commissions they might have made. But no one cab know that they would have made sales of any machines of would have earned any commissions, nor if they sold any, how many machines they would have sold, nor what commissions they would have been entitled to on account thereof, nor how great their expenses would have been in making such sales. We see no basis in the evidence for the allowance of more than nominal damages.
Fifth. It may well be doubted whether this contract was enforcible. There was no agreement by plaintiffs that they would work at this business any particular length of time or give any particular amount of labor or trouble to it. There was nothing which Eouse, Hazard & Co. could enforce against them except to return the sample bicycles. It rested wholly with plaintiffs to do as much or as little as they pleased under the contract.. Where a contract inlposes no obligation on one of the parties it is void for want of mutuality. Vogel v. Pekoc, 157 Ill. 339.
We are of opinion plaintiffs have no reason to complain of the judgment, and it will therefore be affirmed.
