*1 (b) the end on,” and toward going “kept herself aware what the construc- Bette about project, Shipley talked with the construction construction; and tion, object and Bette did his concern Sharp Bette about and August 1999 conversation between Bette project, the construction had not been that Construx things” some to work out trying “were Shipley that she and stated “they would take care it.” ap- with the in accordance carefully the record We have reviewed court’s review, that the trial and we conclude propriate standard place to take the construction knowingly permitted that Bette weight the manifest of the evidence. was not much of the concluding, we note that the Kaisermans make so knowingly permitted Bette fact that no evidence showed that suggest project. at the initiation of the The Kaisermans construction ef- project, the construction “no at the that Bette knew of point are not herself.” We protect [Bette] fective action could be taken project, first of the construction she When Bette learned persuaded. Construx that she was Shipley have then informed both could project take authorizing permitting neither nor construction place.
III. CONCLUSION stated, judgment. For the we affirm the trial court’s reasons Affirmed. TURNER,
KNECHT, EJ., J., concur. COMPANY, INC., Plaintiff- BERRYMAN TRANSFER AND STORAGE Prime, Inc., PRIME, INC., Defendant-Appellee. Appellant, v. NEW d/b/a 4 - 03-0345 Fourth District No. February
Opinion January Rehearing 2004. filed denied *2 McNamara, Evans, (argued), Edward D. Jr. & Springfield, of McNamara of appellant. for
Anthony Young (argued), Ltd., Anthony Young, Chicago, E. of E. ap- of for pellee.
JUSTICE STEIGMANN delivered the opinion court: In September Berryman plaintiff, Storage Transfer and defendant, Company, (Berryman), Prime, Inc. Inc., sued New d/b/a Prime, (Prime), seeking Inc. August to enforce ari parties. Berryman between the In June filed its second-amended complaint. trial,
In following October a bench the trial court entered judgment in Prime’s favor.
Berryman arguing the trial court erred appeals, eight paragraph parties’ ambiguous contract was and enter- ing judgment in Prime’s favor. and remand the trial We reverse judgment Berryman’s damages. court to enter favor and assess
I. BACKGROUND presented Because the are familiar evidence trial, it we review bench through October September in context. arguments necessary parties’ put extent only of companies in the business Prime were both Berryman and transportation brokering goods via truck transporting (the broker, shipper) customer acted as a goods. When turn, found a goods. Berryman, its transport money made when goods. Berryman transport those contract carrier less an amount transport goods contract carrier found a commonly referred to paid by than it had been its customer. its customers its “accounts.” Aluminum, Inc. accounts was Nichols Berryman’s one of August 1995, Berryman Lincolnshire, Illinois. In
(Nichols), located agreed to which Prime pursuant entered into contract with Berryman. Paragraph a contract carrier for to work as parties’ as follows: provided put [blroker has forth agrees
“Carrier understands develop in order to its accounts substantial effort and investment [algreement, no this and for and it will at time the term of year one after the effective date of termination period of indirectly, solicit, [algreement, directly attempt or this either divert, back-solicit[,] any compensa- perform services by-pass, any [blroker has [blroker account which secured *3 unless transportation, [c]arrier has tendered to In the event that given prior has written authorization. [blroker section, [clarrier be hable [c]arrier violates the of this shall terms customary [blroker for the normal and commission which movement, each individual have received for [blroker would thirty [clarrier [blroker shall deliver said amount within billing days shipper.” after of the Prime four
Pursuant to the tendered to facility to a California goods, of Nichols’s from Nichols’s Lincolnshire early 1996, Berryman agents In were at Ni- February destination. facility they that Prime was chols’s when noticed Lincolnshire right then its shipping pursued for Nichols. independently of its contract paragraph eight under with commissions resulting this lawsuit. trial, manager, Wagner, Nichols’s materials
At the bench Michelle since Berryman had a for Nichols around testified that been carrier Nichols’s 1995, Berryman about 25% to 30% of handling shipping facility. from the Lincolnshire Prime as one of
Wagner Nichols first hired further testified that acknowledged prior that January its carriers 1996. She time, paid shipping jobs “third[-]party as a Nichols had Prime
payer.” Wagner explained that some of product shipped Nichols’s Worldsource, Kentucky to a company, painted. to be Worldsource was then responsible arranging the shipping painted product to customers, though Nichols’s even Nichols covered the cost shipping. Worldsource had hired Prime to do some of its shipping of product. result, Nichols’s As 1995, October 1994 July between $53,221.34 Nichols Prime a goods total its shipping from Worldsource to Nichols’s customers. argued
Prime at trial that paragraph did require pay Berryman Prime to jobs shipping commission for Prime did for Nichols because preexisting Nichols was a account of Prime. trial, At the conclusion of the the trial court ruled Prime’s favor, upon finding that Nichols was an account of Prime when Prime product moved Nichols’s from Worldsource to Nichols’s customers prior entering August Prime into the 1995 contract. stated, The court further in pertinent part, as follows: “[T]he evidence in suggests this case and supports doing [c]ourt that Prime was with [Nichols] business for some prior months binding time that the contract here *** was entered into. It ambigu- seems to me that the document is ous, at least to the extent that issues arise as to what happens if [p]aragraph [eight] carrier under has done business the, here, the phrase what’s that’s used in the account. I absolutely problem would have no awarding damages [Berry- if man] [Prime] had not billed and [Nichols] done business with prior prior to the date of the contract.” that — This appeal followed.
II. ANALYSIS Berryman argues by determining the trial court erred paragraph eight of the contract was ambiguous. agree. We ambiguous determination of whether a is a question law; we review thus that determination de novo. Shields Plus, Ag Service, Pork Inc. v. Swiss Valley 3d 767 N.E.2d A ambiguous contract is when its language “is ‘susceptible to than one meaning [citation] more or is obscure in ” meaning through expression.’ indefiniteness Shields Pork 3d at quoting Chicago N.E.2d at Wald v. Ass’n, Shippers 529 N.E.2d *4 (1988). eight paragraph ambiguous trial court found to be because it when, case,
did not address it in this applied whether carrier had done business with the broker’s account. We disagree excep- with the court’s determination that the absence of an
863
in
ambiguity
an
relationships constitutes
for
business
preexisting
contract, Prime
eight of the
paragraph
Pursuant
the contract terms.
the term of
for
perform any
compensation
service
agreed not
thereafter)
(and
for
year
any account
period
for a
of one
the contract
Berryman the
paying
Berryman had tendered
without
exception—
eight provides one
Paragraph
customary commission.
authorization.”
“prior written
namely,
Berryman provides
when
Berryman accounts
exception
an
Paragraph eight
provide
does
court,
did,
as it
ruling
for whom Prime had
worked.
provided
and thus
essence,
exception
paragraph
in
added that
negotiated
itself.
bargain than Prime had
Prime with a better
strong presumption
provisions
recognizes
Illinois
were not. Miner
in a contract but
could have been included
easily
405, 417,
Inc.,
794 N.E.2d
Enterprises,
App.
342 Ill.
3d
v. Fashion
by
Further,
to a contract are limited
rights
“the
914
may
in
not rewrite
expressed
the contract
courts
the terms
equitable.”
agreement
add
to make the
more
provisions
Illinois,
App.
Bank
Ill.
Mutual Insurance Co. v. Firstar
Jewelers
(2003)
(McBride, PJ.,
specially concurring
3d
792 N.E.2d
dissenting
part);
in
Pork
3d
part and
Shields
will not add terms to a
(recognizing
III. CONCLUSION stated, remand for the trial court For we reverse and the reasons damages. assess judgment Berryman’s enter favor and Reversed and remanded.
APPLETON, J., concurs. COOK, dissenting:
JUSTICE affirm the trial I dissent and would decision respectfully court.
Berryman Prime, tracking companies, and into entered a contract August 14, 1995, on agreed under which to shipments, Prime make by requested Berryman, Berryman which had contracted to make for shippers. various The contract awas fill-in-the-blank regularly by standard-form contract used Berryman. The contract did not identify any shippers by name. provided The contract that Prime “any [Berryman] would not solicit account of which [Berryman] has secured has previously and tendered to for transportation.” [Prime] If Prime provision, violated that Prime “shall be liable to [Berryman] for customary normal and commission [Berryman] which would have August September 1995, contract, received.” In pursuant and Berryman requested shipments that Prime make some for Nichols. in January 1996, Then shipments Prime made some for Nichols by Berryman. without any involvement problem The prior is that to the date of the Prime was already making shipments for product Nichols. Some of Nichols’s was shipped Kentucky Worldsource, to a company, painted where it was on shipped and to Nichols’s customers. Worldsource hired Prime to do some of shipping, but Nichols’s product being was shipped, and it paid shipment. was Nichols that Prime for the
Michelle Wagner testified that she manager is materials at Ni- According chols. Wagner, $53,221.34 to Nichols Prime for ship- ping services between October 1994 July shipments 1995 for the from Hawesville, Kentucky. Worldsource in On October Prime given supplier a identification On number Nichols. October 1994, Kevin of Prime Hanks contacted to Nichols solicit its business. On requested November Nichols Prime’s federal identifica- May 1995, tion In Nichols, number. sent rate proposals quot- Hanks ing Lincolnshire, rates from Hawesville, from and from other loca- January 1996, began Prime, tions. Nichols direct use with due to Helena, Wagner, increase to a customer Arkansas. Berryman Prime, who was unaware the contract between felt many Berryman of, of the loads had complained given which been would have given Berryman: been “If Prime wouldn’t to, I carriers, have been able would have called not Berryman. other They Berryman us, were an area that typically covered or we good didn’t have a rate at that time.”
The majority chooses to decide this case on the of legal basis rules ignore parties. majority and to the intent of the that any assumes (and work Prime does term the for Nichols thereafter) a period year requires of one Prime to pay “provides only exception ‘prior comir. 'Sion. The is where ” “excep- writte authorization.’ 3d at There is no had worked.” whom Prime accounts for essence, did, court, ruling “In as it 3d at 863. Prime with provided and thus paragraph exception added that negotiated had itself.” bargain than Prime better at 863. interpret attempt law is approach
The modern to contract interpret them. people would contracts as the business may be trade, usage performance and course dealing, Course of agreement even the terms of an explain supplement considered ILCS agreement ambiguous. determination that the without (l)(a) (Smith- Comment Uniform Commercial Code Ann. 5/2 — 1993) has the used (rejecting premise Hurd than meaning by legal to it rules of construction rather attributable *6 in which it was meaning the arises out of the commercial context that 545, 531, App. Inc. v. 3d used); Realty, Shaffer, see also Towne (2002) (rule 47, J., (Cook, dissenting) of construction 773 58 N.E.2d simply parties drafter not intent of but attempt does discern coin). “In a case, interpreting the like a flipping decides who will win primary goal give it is axiomatic that the is to effect Bensenville, App. Ill. parties.” Village intent of the Putnam v. 337 of Plus, (2003); 197, 209, 203, 3d 211 see Shields Pork 786 N.E.2d also 310, App. 329 3d at Ill. at 767 N.E.2d interpretation contract
The courts have come to disfavor strict ascertaining intended recognized impossibility and have the of the of meaning agreement of an without reference evidence surround- circumstances, not ing though agreement even the at issue was Village Orland “ambiguous.” First Bank & Trust Co. Illinois v. of of 300, (2003); Air 35, 47-48, Hills, 338 Ill. 3d 787 310-11 App. N.E.2d cf. 463-64, 457, 2d Realty Corp., Inc. v. 706 N.E.2d Safety, Teachers (1999) 882, ambigu- (retaining determining “four-corners rule” for 885 clause); 810 ity explicit integration see where contract contains 202(b) (West 2002) (consistent reduced additional terms not ILCS 5/2 — may proved writing complete be if intended as writing “ meaning ‘The of agreement). of statement terms the exclusive ” Ash, 101 Corp. words cannot ascertained in a vacuum.’ URS v. be (1981), v. 229, 234, 1295, quoting Ill. 427 1299 Ortman App. 3d N.E.2d (7th Nicholas, 1971); 231, F.2d Michael Stanray Corp., 437 234-35 Cir. 915, 909, Ill. 748 Royal America, Inc. 321 3d v. Insurance Co. of (2001) (insurance contract). is 786, policy “An N.E.2d 792 insurance ***. first blush interpreted to be a factual vacuum What might not be appear unambiguous might in the contract insurance was is- particular setting such in the in which the contract factual 330, Ass’n, 57 2d sued.” v. Farmers Insurance Ill. Glidden Automobile 866 “ (1974).
336,
247,
312
words,
‘[N]o
N.E.2d
250
of
no
form
how
matter
encompassing,
all
scrutiny
will foreclose
of a
[citation]
release
prevent a reviewing
inquiring
court from
into surrounding circum-
fairly
stances to ascertain whether
accurately
was
made and
”
reflected the
parties.’
intention
the
Carlile v. Snap-on Tools, 271
Ill. App.
317,
(1995),
3d
648 N.E.2d
321
quoting Ainsworth
Cenco,
Corp.
Inc.,
439,
v.
Ill.
3d
437 N.E.2d
The majority
the catchphrase
recites
that
recognizes
“Illinois
strong presumption against provisions
easily
been
could have
included in
but
not.”
were
Inc., (1994) 3d 641 N.E.2d (plain agreement clearly only indicated defendants required were pursue Services, rezoning city council); before the v. Cress Recreation Inc., 341 App. Ill. (parties 795 N.E.2d made breach). no attempt damages to limit measure available on Shields Pork cited by majority support presump- “ ‘against provisions easily could have been included in the ” not,’ actually contract but were presumption critical *7 apply refused to it. Shields Pork 3d at 767 950, quoting Klemp, N.E.2d at 3d at 641 at N.E.2d term; did (parties 962 fact that it did include was ill-defined not mean term). parties presump- intended contract to be silent as to that The if says “orange,” tion at best restates the obvious: the it say “blue,” If parties say should not be read to “blue.” the wanted to they easily could have done so.
Modern dealing authorities have considered the course of between parties the even See finding ambiguity. absent 810 ILCS 5/2— (West 2002). case, however, ambigu- 1—205 In the present it is clear an ity susceptible exists. When the used is to more than one meaning meaning is through expres- obscure indefiniteness of sion, ambiguous. Chicago is v. properly considered Wald Ass’n, 529 Shippers N.E.2d 1145 (1988). [Berryman] which any “for account language, the Does not secure Berryman did secured,” include accounts [Berryman] has language, Does the preexisting Prime’s accounts? but which were customary the commis- [Berryman] normal “shall be hable received,” require payment have [Berryman] sion would which It at all clear Berryman received? is not would have commissions in the that be affirmative. questions those should answered ambiguous. contract is law, exists one of the question ambiguity
While the whether is ambiguity the that is one fact. We will question of effect of is the manifestly court’s of fact unless it disturb a trial in a weight evidence, superior position as that court is determine credibility, weigh evidence, preponder- and determine the Associates, Ltd., Rybicki Analgesia ance v. Anesthesia & thereof. Ill. N.E.2d The trial court App. 3d company Prime this doing [Nichols] found “that business with prior binding some to the time that the contract the months “that here entered into.” The trial court found the document is happens least arise as ambiguous, at to the extent that issues to what if [eight] the under has done business [p]aragraph carrier the, here, with the the phrase what’s that’s used account.” Based product shipped on that the Wagner’s testimony Worldsource was Worldsource, always product, Nichols’s from the time that it went to Worldsource, while it left Worldsource until it it was after consumer, ultimate the court found “that in fact this reached the trial was an account of Prime The trial prior date contract.” contrary weight court’s decision was not to the manifest evidence. another look at case. Even if assume no way
There is this we ambiguity Berryman and refuse to look outside the is entitled to a secured and only commission on accounts it “has which Berryman to Prime. is entitled to commissions only tendered” court particular for a movement. The trial “would have received” tender did not secure and was entitled conclude already that Prime had done business Nichols business without shipments complained have of even Prime would received had relationship Berryman. Berryman prove had secured tendered to complained-of work was on an account it amazing thing do so. The about Prime. failed to more than holding nothing if Prime had done majority’s it had been shipments continue to make Nichols’s Worldsource do- on ing have a commission since Prime would owed contract, August 14, any after the date of the 1995. Those *8 certainly by were not Berryman, secured but the majority would requirement read that out of the contract.
The argument that, determining could be made Nichols was by Berryman Prime, account secured and tendered to the trial court rendered the contract meaningless. That argument would be incorrect. The contract applied any shipments Berry- tendered man just the Nichols shipments. may There have been shippers Nichols, than other where in fact ac- secured the count and tendered it to Prime.
THE ILLINOIS, OF Plaintiff-Appellee, PEOPLE THE STATE OF v. RICKY
SMITH, Defendant-Appellant. (1st Division) First District No. 1 - 02-0883 February 2, Opinion filed (James Defender, Perlman, counsel), Fry, Rita Chicago A. Public N. appellant.