Alwart Bros. Coal Co. v. Royal Colliery Co., 234 F. 20

Alwart Bros. Coal Co. v. Royal Colliery Co.

234 F. 20 | 7th Cir. | 1916

KOHRSAAT, Circuit Judge

(after stating the facts as above). [1] When this cause was before us with case No. 1999, on January 6, 1914, we held that the contract called for monthly shipments as near as might be, and that in the absence of orders noi obligation rested on the shipper to deliver such monthly installments of coal up to January 1, 1912, either during the month or thereafter; that each monthly requirement was severable. Alwart Bros. Coal Co. v. Royal Colliery Co., supra. We find no material variation in the evidence there adduced, as disclosed in the opinion, and here, sufficient to justify any different conclusion. The only change consisted in adding the words “within two weeks.” The evidence herein fully sustains the contention, there assumed, that defendant had the right to and did cancel the contract on February 20, 1912, under the provisions of the contract.

[2] We are, moreover, of the opinion that, by reason of its demands for deliveries far in excess of 2,500 tons per month, together with its threats to bring suit for failure of defendant to make good the shipments neither ordered nor attempted to be delivered prior to January 1, 1912- — which deliveries we held, in effect, in the above-named case, it was not bound to make — and the intimations contained in the letters to the effect that delivery of 2,500 tons of coal per month would *24not be accepted as a compliance with the contract, defendant was relieved from any obligation to make further deliveries after February 20, 1912, as for want of proper order as well so to do. Park Steel Co. v. Staver Carriage Co., 125 Ill. App. 105. No shipment was made after February 20, 1912.

[3, 4] With regard to the plaintiff’s failure to take a new trial, it was not bound to do so. It had had three nisi prius hearings, and was advised of the court’s-judgment as to the matters here involved. The evidence was not in dispute. Plaintiff was entitled to this court’s judgment upon that evidence. There was no merit in the assignment of error upon the District Court’s failure to submit the alleged agreement to deliver 6,000 or more tons of coal between February 20, 1912, and April 1, 1912. The suit was on the original agreement. No case was made out upon the pleadings with regard to that agreement, which, if made, was a new one, and in the nature of a settlement.

We find no error, and the judgment is affirmed.