155 N.E. 343 | Ill. | 1927
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *348 The defendant in error filed a suit in the superior court of Cook county against the plaintiff in error company on a contract for the sale and delivery of 225 cases of Chinese crystal hen egg albumen, of about 200 pounds net per case, at the price of $1.54 per pound, duty paid. The contract signed by the parties contained the following specifications:
"Shipment from the Orient, 75 cases in April, 50 cases in May and 100 cases in June, 1920. Quality, f. a. q. of the season. To be approved before removal from docks. Terms of payment: Net cash sight draft against bill of lading. Insurance, by seller. Weights, shipping. Tare, shipping. Sample for arbitration to be drawn and sealed in the presence of both buyer and seller or by some persons agreed upon by both."
The contract further provided that the albumen should comply with the food and drug acts of June 30, 1906, and with the requirements of the Department of Agriculture as to zinc. The plaintiff in error defended on the ground of failure to perform in accordance with the terms of the contract. Some counts of the declaration having averred a parol agreement to amend certain terms of the contract, the plaintiff in error also filed a plea of the Statute of Frauds and the Uniform Sales act. The jury returned a verdict *349 for the plaintiff in the sum of $18,500 as damages for the breach of the contract. The Appellate Court affirmed this judgment, and the cause comes here by writ ofcertiorari.
The vendor sold the goods in the open market, and the suit is to recover the difference between such sale price and the contract price resulting from the decline in the market value of the goods.
The contentions of the plaintiff in error are, first, that having pleaded the Statute of Frauds.the modifications of the contract are avoided, and the offers of performance on the part of the defendant in error having been made according to the parol amendment of the contract, there was a failure of performance and plaintiff in error was justified in refusing the goods when tendered. It is also contended that the contract as sought to be amended was void under section 4 of the Uniform Sales act, the price of the goods sold being for more than $500, as in such case that act requires that the contract of sale be in writing, and that the same rule is to be applied to a modification of a contract made under the Sales act as applies to modifications under the Statute of Frauds.
The contract was dated November 20, 1919. The facts pertaining to the modification of it as found by the Appellate Court, and which must therefore be taken as the facts here, are, that about March 12, 1920, Miner E. Bear, secretary of the plaintiff in error company, went to New York and conferred with Royal L. Firman, treasurer of the defendant in error, and asked that the plaintiff in error be allowed to take some of the albumen on trade acceptances instead of sight drafts and that delivery of the same be in lesser quantities and over a longer period of time than provided for in the contract. He requested that the deliveries be made in smaller quantities for the reason that it would assist in financing the transaction for his company. Firman told him that the vendor would be glad to do anything in that respect that it could do, but that he could not promise *350 anything until he learned whether the bank financing the transaction for the vendor would accept trade acceptances on the shipments. On March 18, 1920, the plaintiff in error wrote to the defendant in error, saying: "With reference to the trade acceptance on these three shipments of albumen to come, will say that we would like to have these on ninety-day acceptances." To this the defendant in error replied that it would be willing to accept ninety-day acceptances if its bank would agree. It appears from the evidence that later the bank did agree to take care of these acceptances. In the latter part of February, 1920, the market price of albumen began to decline. In March the price had dropped from $1.54 to $1.15, and the price decline continued up to the time this action was started. By the middle of July the price had declined to about eighty cents. On April 13, 1920, the plaintiff in error wrote the defendant in error attempting to persuade the latter to cancel the contract, calling attention to the fact that the price had gone down to $1.23, and suggesting that the defendant in error had not made the actual purchase of albumen to cover the contract. To this letter the defendant in error replied that the contract represented an actual purchase on its part to cover it and refused to cancel. During the first week of May the defendant in error notified the plaintiff in error by telephone that the April shipment had arrived in Seattle and would be forwarded in a few days by freight. Elmer Bear, the president of the plaintiff in error, in the conversation that followed referred to the terms of payment and again requested a modification by accepting trade acceptances, to which the defendant in error agreed. It was also in this conversation agreed that a less number of cases should be delivered than those required by the contract. The plaintiff in error was thereby privileged to take 25 instead of 75 cases. The shipment which included the 75 cases, referred to in the contract as the April shipment and which left Shanghai, China, on April 1, reached *351 Seattle, Washington, on May 2, and a few days later came on to Chicago and was unloaded in the warehouse of White, Stokes Co., subject to delivery orders of the defendant in error. After some correspondence and conversations, certain trade acceptances and changes in the delivery of the goods were agreed upon, and Elmer Bear, president of the plaintiff in error, directed the defendant in error to have the papers made out at the bank, which was done. It appears that numerous other conversations were had in May and June. An invoice for 25 cases of the April shipment was delivered to the plaintiff in error, and it thereafter called up the office of the defendant in error complaining that no order for delivery had been sent with the invoice, it being understood between the parties that the delivery was to be effected by an order on White, Stokes Co. On July 8 sight drafts and trade acceptances covering the shipments were presented to the plaintiff in error accompanied by a delivery order, and the plaintiff in error refused to receive the goods, ascribing no reason for such refusal. At a later conference it was suggested by counsel for the plaintiff in error that the April shipment had not taken place according to the terms of the contract, it being conceded that the April shipment was put on board a steamer at Shanghai on the last day of March. Firman then on July 14 (the time for delivery not having expired) told the plaintiff in error that the defendant in error had in New York at that time albumen of the same kind, shipped in the months and of the quality specified in the contract, even as construed by the plaintiff in error, which would be delivered to the plaintiff in error if desired. The reply was that the plaintiff in error would not take anything under the contract. Firman's evidence on this point is corroborated by a salesman who testified that the attorney for the plaintiff in error then stated, "No deliveries would be accepted under the contract." On August 28, that time still being within the period limited for deliveries according *352 to the contract, the defendant in error wrote, "We have 225 cases here which we can tender in the strictest technical compliance with your contract." The plaintiff in error replied on August 31 in a letter which is properly characterized as evasive and as constituting a rejection of the offer. Attempts to secure performance of the contract were futile, as were efforts to secure an adjustment. On October 14 the defendant in error made a final offer, both by letter and telegram, to deliver the 225 cases contracted for, which offer, however, was refused, the plaintiff in error then specifying as ground for such refusal that the quality of the albumen was not according to the contract.
The first question involved in the case is whether there was a breach of the original contract by placing the albumen on board ship in the Orient on the 31st of March instead of during the month of April. It is conceded that the boat left Shanghai on April 1. This involves the question of construction of the language, "Shipment from the Orient, 75 cases in April," etc.
It is contended by the plaintiff in error that in contracts of this character time is of the essence of the contract and the buyer may refuse delivery if shipment is not made in strict accordance with the contract, though the difference may be slight; that statements of the date of shipment by the vendor go to the identification or description of the property and are therefore in the nature of warranties, proof of the truth of which is a condition precedent to recovery for failure to accept, and it cites in support of this contentionBowes v. Shand, 2 App. Cas. 455, (an English case decided in 1877,) and cases based thereon. That case cites no authority, and its force as an authority is much weakened by the fact that it is not in harmony with the great weight of authority in this country as to what constitutes a shipment or the time when a shipment is considered as having been made. The contract in theShand case provided for the sale of rice "to be shipped at Madras, or *353
coast, during the months of March or April, by the steamer Rajah." A portion of the rice was loaded on the steamer in February, but the shipper did not complete the delivery to the vessel until some time in March. It was held that the loading of the vessel constituted the shipment and that the rice loaded in February was shipped in February and not in March, and so constituted a breach of warranty to ship in March or April. In this country a shipment does not consist in loading, alone, but consists in the complete delivery of goods by the shipper to a carrier for transportation, and the shipment is not made until the shipper has parted with all control over the goods and nothing remains to be done by him to complete the delivery, and where goods to be shipped are delivered to a carrier in installments the shipment is not made until the delivery is complete, and until such time the relation of the carrier to the installments delivered is that of warehouseman and not carrier. Kansas City, M. O. Ry. Co. v. Cox,
Under the above rule, in the absence of a specific contract or of a trade custom to the contrary, the loading of a part of the rice on the steamer in February in the Shand case would not constitute a shipment in February but a shipment in March. There was proof of a trade custom *354 in the case. While there are a few cases which hold that in those particular cases the time of shipment specified in the contract was a warranty as to the identity of the particular goods sold, in this case no particular goods were sold. The evidence shows that vast quantities of albumen are manufactured in the Orient, manufacturing commencing in January and shipments in March, and that there was no difference whatever between shipments made in March and those made in April. The evidence shows that one case of albumen meeting all the other requirements of the contract is just like any other. The time of shipment in the contract was not intended as a warranty of the quality of the albumen, as the contract in detail specifies its quality.
Whether or not time is of the essence of mercantile contracts is a question of fact, to be determined from the language used by the parties, read in the light of the circumstances surrounding them at the time of making the contract. Where a person deals in a particular market he must be taken to deal according to the known general or uniform usages of that market. (Eau Claire Canning Co. v. Western Brokerage Co.
In Coyne v. Avery,
In Bowman Bull Co. v. Linn,
In DeStefano v. Associated Fruit Co.
China, Japan, Ceylon and Sumatra were customarily known as the Orient, and a shipment of 75 cases of albumen in April from any place in this vast territory, without regard to when it was manufactured, would have technically met the call of this contract, and the evidence shows that the length of time of arrival of shipments made from these various countries would vary greatly. The date of the shipment could in nowise tend to identify the goods shipped and could give only a very indefinite and general idea of the time of arrival. We cannot hold, as a matter of law, that time of shipment was of the essence of this contract and that the vendee had a right to rescind the same for a breach of warranty by reason of the fact that the albumen in question was placed upon the steamer on March 31 instead of April 1.
It is also contended that the modifications of the contract made by parol agreement were void under the Sales act, and as performance was tendered in accordance with the contract as modified and not with the original contract there was a failure to perform, and the plaintiff in error is therefore entitled to have this judgment set aside. The defendant in error argues that the modifications of the contract, affecting, as they did, performance only, do not constitute such modifications as to render the contract one partly *357
oral and partly written; that the performance was but a substituted performance, and an action brought upon the original contract alleging non-performance of the subsequent parol agreement as the basis of the suit should be sustained. While this is the view taken by the courts of some States, it does not appear to us to be in accord with the plain construction of the language used. In any contract the thing contracted for is performance. Changes in the requirement as to performance are changes in the contract, whether it be as to time of delivery or character of goods to be delivered. Failure to perform according to the terms of the contract is failure to comply with the contract. An agreement, therefore, to furnish a different quality or deliver at another time is another contract, and where the original contract must be in writing, so must be the change effected by the agreement of the parties. This is one of the fundamental principles of contract and the duty arising thereon to do the things agreed to be done. (Imperator Realty Co. v. Tull,
The plaintiff in error has objected to the sixth, eighth and twelfth instructions given on behalf of the defendant in error. It is objected as to these instructions that they remove from the consideration of the jury certain issues of fact raised by the pleadings and the evidence. The sixth instruction is as follows:
"The court instructs the jury that, if you believe from the evidence that as a part of the contract entered into between the plaintiff and the defendant for the sale by the plaintiff to the defendant of the albumen in question, it was agreed by the defendant that it would take and receive the albumen specified in the contract, and that the defendant refused finally on October 12, 1920, to accept the albumen *359 in question or to have anything more to do with the contract, then your verdict should be for the plaintiff," etc.
An instruction which directs a verdict, or amounts to such direction, must necessarily leave to the jury all issues of fact necessary to authorize the verdict by such instruction directed. (Illinois Iron and Metal Co. v. Weber,
It is contended by defendant in error that the words "the albumen in question" mean "the albumen in accordance with the contract," and that plaintiff in error cannot complain of the use of this term in the instructions as the same term is used in instructions given at its request. While this term is used in four of plaintiff in error's instructions, yet the sense in which it is therein used can, not furnish a proper criterion to show the sense in which the expression is used in the instruction here in question, in which the context and subject matter are different. This instruction to the jury, ignoring the issue of the quality of the goods, was prejudicial error. We are loath to reverse a judgment in a case of such magnitude for one erroneous instruction, but are of the opinion that it cannot be said that the verdict of the jury was free from its vicious influence.
The eighth instruction in effect told the jury that if they found from the evidence, according to the law given by the court, that the defendant breached the contract they should find for the plaintiff. Such an instruction is not open to the objection urged against the sixth instruction, for the reason that it is made to depend upon the instructions to the jury as to the law on the whole case. This is likewise true of the twelfth instruction, which tells the jury that if they find from the evidence "and these instructions" that the defendant has failed and refused to take the albumen in question under the contract and pay for the same, *361 and that it has thereby broken the contract as charged in the declaration, the plaintiff is entitled to recovery.
Certain letters introduced in evidence were objected to on the ground that they were of a self-serving character. Self-serving declarations, whether they be made in the form of letters or otherwise, are not admissible in evidence. However, a letter otherwise competent will not be rejected because it contains statements of a self-serving character. The general rule is, that a party cannot by self-serving declarations make evidence for himself concerning his dealings with the other party or the liability of such other party. (Cooke Co. v.Miller Brewing Co.
For the error in giving the sixth instruction the judgment is reversed and the cause is remanded for a new trial.
Reversed and remanded.
Dissenting Opinion
The contract in question provided for "shipment from. the Orient, 75 cases in April," which, as the authorities hold, means placing on board ship during the month of April. The contract did not say anything about the time of delivery, and a discussion of whether the change in time of shipment affected or might have affected the time of delivery has no place in this case. The parties had the right to contract for shipment in April, and having entered into such a contract the purchaser has the right to insist upon its fulfillment. A shipment on March 31 was no more a in April than a shipment on January 31 or May 31. What was sold was not merely seventy-five cases of albumen of a certain quality, but was seventy-five cases of albumen to be put on board ship in the month of April. *362
Albumen put on board ship in any other month is not the article sold. Where the purchaser contracts to buy rice shipped in March he is not obliged to take rice put on board ship in February, although the ship sails in March. (Bowes v. Shand, 2 App. Cas. 455.) Where the article sold is pig iron to be shipped from Glasgow, the seller can not compel the buyer to accept pig iron shipped from Leith. (Filley v. Pope,
For these and other reasons unnecessary to set forth we respectfully dissent. *363
