63 Ill. App. 247 | Ill. App. Ct. | 1896
delivered the opinion oe the Court.
The relations between these parties began by a bought note delivered to the appellant, and a sold note delivered to the appellees, by “ a broker in beef and pork goods,” as follows:
“ Chicago, Nov. 3, 1891.
Bought of J. M. Doud & Co., Boone, Iowa.
Care of Lamson Bros., Board of Trade Bldg., Chicago:
Their entire production leaf, from date to January 1, 1892, at nine cents, Chicago delivery. You are to receive the leaf f. o. b. teams at any city depot or at any warehouse at Hnion Stock Yards, in such lots as they may ship. In the event that either party should become incapacitated in manufacturing by destruction of premises by fire, the sale to become null and void at such date. Goods to be in prime condition on arrival in Chicago. Terms, cash.
L. M. Pbentiss.
To J. J. Murray & Co., Chicago.”
“ Chicago, Nov. 3, 1891.
Sold J. J. Murray & Co., your entire production of leaf lard from date to January 1, 1892, at nine cents, Chicago delivery. They are to take this leaf f. o. b. teams at any city depot, or at any warehouse at the Union Stock Yards, in such lots as you may ship. They would like, however, that you ship in lots about 5,000 pounds, when convenient to do so. In the event that either party should become incapacitated in manufacturing by destruction of premises by fire, the sale to become null and void at such date. Goods to be in prime condition for butterine purposes on arrival in Chicago. Always notify me as shipments start and Avhere consigned, with car number. Terms cash.
L. M. Pbentiss.
To J. M. Doud & Co., Boone, Iowa.
Care Lamson Bros., Chicago.”
A moderate acquaintance Avith the ways of business enables us to know that by such documents contracts of sale are made, Avhich the law regards as the parties intend them. Benjamin on Sales, Sec. 273 et seq.; Memsey v. Niepert, 131 Ill. 623, and cases there cited; S. C., 33 Ill. App. 131.
As the abstract shows no verification of any plea denying the execution of those instruments, copies of which Avere filed Avith the declaration, there can be here no question that they are truly the contract between the parties. Sec. 34 Practice Act; Wabash R. R. v. Smith, 58 Ill. App. 419.
The market price of lard declined during the time covered by the contract, and this suit is brought by the appellees to recover damages Avhich they allege they sustained by the refusal of the appellant to take and pay for some of the lard.
A part of the contest was as to a little over twelve thousand pounds of lard “ produced” by the appellees in December, 1891, and arriving in Chicago January 1 and 5,1892. The contract is silent as to time of delivery, and therefore the delivery was to be in a reasonable time after production, which might be later than any date mentioned in the contract. The appellant, however, relies upon a letter as a practical construction or rescission %>ro tomto of the contract, or as an estoppel—as follows:
“ Lamson Bros. & Co., Commission,
FTo. 6 Board of Trade,
Chicago, Dec. 31, 1891.
Messrs. J. J. Murray & Co., 109 Fulton Street.
Gentlemen : With to-day’s car our contract for leaf lard expires. Dec. 14th you rejected 7,570 lbs., which we have Board of Trade certificate declaring to be good and sweet. Dec. 18th you rejected 4,100 lbs., 'which we sold to Friedman & Swift—total 11,670 lbs.—and they will certify that it was first-class.
FTow, we wish to propose to you to ship you the amount, 11,670 lbs. next month, at the old price, 9c., and settle our differences this way and continue to let you have our lard at market price afterward. If you accept this proposition please let us know. We predict small run of hog's next three months^and higher prices.
Yours truly,
J. M. Doud & Co.”
The appellant did nothing in consequence of that letter— in no way changed his position; and the letter was followed by another, as follows :
“ Lamson Bros. & Co., Commission,
FTo. 6 Board of Trade,
Chicago, January 2, 1892.
Messrs. J. J. Murray & Co.', 109 Fulton Street.
Gentlemen : When we wrote you the other day—-December 31—that the car at the Union Stock Yards completed the contract, the writer did not have your contract before him, but since referring to it we find that you are to take our entire production during November and December, and no time stated for delivery. We killed 923 hogs Thursday, December 31, and the lard will be in by the first of the week. Mr. Prentiss informs us that you decline to take this lot or the one to come, so we have ordered both lots sold for your account and will render you a bill for difference accordingly, and insist upon payment for not only this but all other differences since the contract was made.
Yours truly,
J. M. Doud & Co.”
The appellees were entitled to whatever the contract, and the acts done under it, entitled them to, without regard to those letters.
All the questions of fact upon which the rights of the parties depended, were settled, upon conflicting testimony, by answers made by the jury to special interrogatories prepared by the appellant.
The appellant asked twenty instructions, of which the court gave a dozen, and we will add only that he got to the jury all the law that he had any right to, and a little more.
The attorneys seem to have had a boisterous time before the jury, but it does not appear that the attorney of the appellee got the advantage in the scramblé, and we suspect that he could not have done so. Cartier v. Troy Lumber Co., 35 Ill. App. 449; Lake Erie & W. R. R. v. Middleton, 142 Ill. 550.
The court instructed the jury that the appellee was entitled to interest on whatever damages he sustained. Oases, even in this State, conflict upon that question.
The instruction is in accord with Driggers v. Bell, 94 Ill. 223, and Dick v. Sherwood, 51 Ill. App. 343, 157 Ill. 325.
There is no error, and the judgment is affirmed.
This disposition of the case makes it unnecessary to pass upon the motion to strike out the bill of exceptions.