221 Ill. App. 162 | Ill. App. Ct. | 1921
delivered the opinion of the court.
Two of the grounds urged in defendant’s motion for a new trial were that the finding of the jury was contrary to the weight of the evidence and contrary to law. The jury found the issues in favor of plaintiff and assessed its damages for the full amount of its claim including interest for coal delivered prior to December 26, 1916, under the contract between the parties, thereby disallowing in toto defendant’s claim of set-off for damages occasioned by plaintiff’s alleged breach of the contract in failing to deliver any screenings coal to the Garfield Park power house subsequent to said date. Two of the errors here assigned are that the trial court erred in denying defendant’s motion for a new trial and in entering a judgment upon the verdict against defendant in the sum of $2,253.52. Counsel here argue in substance (1) that the evidence shows that there was a clear breach of the contract by plaintiff; (2) that because of such breach defendant, under the express provisions of paragraph F of the contract and under the law generally, was entitled to purchase screenings coal in the open market as it did, and to charge plaintiff with the difference between the then existing market price and the contract price; and (3) that, after the receipt by defendant of .plaintiff’s letter of December 26,1916, and under conditions then existing at said power house and in the coal trade, the actions of defendant, in demanding that plaintiff immediately deliver 1,000 tons of screenings at said power house, followed by defendant’s order to the Consumers Company to deliver 450 tons of screenings at said power bouse, were not unreasonable, and did not constitute a breach of tbe contract by defendant wbicb authorized plaintiff to cancel the same.
Referring to tbe contract in question we find that it was agreed that plaintiff should furnish to defendant during tbe year ending June 30, 1917, all the screenings coal “needed for consumption”- at defendant’s power bouse in G-arfield Park at $2.15 per ton delivered; that tbe probable amount required at said power bouse for tbe year was 4,500 tons; that tbe bin capacity there was 388 tons; and that tbe coal should be delivered-‘‘as ordered” or “as directed” by defendant, and should be paid for monthly. It appears from tbe evidence that, during tbe time coal was furnished at tbe power bouse under tbe contract, plaintiff usually made deliveries in lots from 100 to 150 tons at a time upon telephone orders received from defendant’s representatives. We think it clear, both from tbe language of tbe contract and tbe practical construction placed thereon by tbe parties, that the intention was that plaintiff should upon orders of defendant make deliveries of coal from time to time as such coal was needed by defendant, it to be tbe judge of that need, but that no unreasonable or very large amount of coal should be ordered at any one time. (McLean County Coal Co. v. City of Bloomington, 234 Ill. 90.) Tbe specifications, on which plaintiff made its bid and wbicb was made a part of tbe contract, also contained a provision (paragraph F) to tbe effect that should plaintiff fail to deliver coal, in such quantities or at such times as might be ordered by defendant, tbe latter might purchase coal in tbe open market and charge plaintiff with tbe difference between tbe then market price and tbe contract price and all costs and expenses. We think that this provision of tbe contract, in view of tbe other provisions thereof, should receive a like construction, viz.: that should plaintiff fail to deliver coal, in such reasonable quantities, and at such times, as might be ordered and needed by defendant, the latter might purchase coal in the open market, etc.
The specifications contained the further provision (paragraph Gr) to the effect that, should there be a “mine accident, railroad congestion, car shortage or other causes” (the words “other causes” meaning, of course, other causes similar to those enumerated), which in the opinion of the plaintiff would make it impossible for plaintiff to deliver coal “from the county and state named, in his bid, ’ ’ plaintiff should notify in writing defendant, who then at its option might permit plaintiff to deliver coal “from another source than contracted for” and “equal in quality to that contracted for,” and for a period of not exceeding one week, which period might be extended from week to week at defendant’s option. It was provided in the contract that all screenings coal should come “from a mine or mines located in either the States of Illinois or Indiana.” ( It will be noticed that by the provision of said paragraph Gr, in case of the happening of the contingencies therein mentioned and notification in writing thereof given, defendant might allow delivery of screenings coming from another source than contracted for and equal in quality. It was not provided in said paragraph Gr or in any other .part of the contract that, in case of the happening of any of said contingencies, plaintiff might be relieved from making further deliveries of screenings at said power house as needed by defendant, or might be allowed to charge a higher price than the contract price for such further deliveries during the continuance of a railroad congestion, car shortage or other similar occurrence. It further appears from the evidence, in substance, that during the month of December, 1916, and prior to December 26, plaintiff had been unable to make certain deliveries of screenings to defendant’s power house, as needed by it, owing to “car shortage at the mines and very great congestion at Chicago ter-mináis,” and further owing to the fact, as Grower testified Curtin told him, that plaintiff had not made arrangements at the mines sufficiently early in the season to supply plaintiff’s requirements for screenings; that frequently during said period plaintiff, in order to fill defendant’s orders, had delivered mine run coal (a higher and more expensive grade of coal, hut which could he used at the power house), hilling it at the contract price of screenings, and as a consequence had been losing money; that on December 26, plaintiff had on hand in its two Chicago yards and on railroad team tracks only from 200 to 300 tons of screenings and mine run; that on said- date defendant’s supply of coal at the power house was very low and defendant’s representatives had become disturbed over the situation; that it was winter time and said power house furnished the heat for a large conservatory, mostly composed of glass, where a valuable collection of plants and flowers was housed; that the average consumption of coal at the. power house during the month of December was 26 tons a day with a maximum of 40 tons, and that the average consumption for the month of January in each year was 800 tons; and that in the opinion of defendant’s superintendant necessity demanded that at least a ten days’ supply of coal, or more, be kept in the bins. With this condition of affairs existing plaintiff wrote the letter of December 26 to defendant, in which was mentioned the “difficulty” it had had in performing its “obligations” under the contract relative to the delivery of screenings at ‘the power house owing to car shortage and railway congestion, and also the fact that it had recently been losing money on its contract because it had been furnishing mine run coal and billing it at the contract price of screenings. In the letter plaintiff proposed that defendant, outside of the contract, make “an emergency purchase” of 1,000 tons of mine run coal to be delivered at once, in order to tide defendant over during the period of greatest shortage, arid that defendant pay therefor the sum of $4.40 per ton; in other words, plaintiff suggested that, because of existing car shortage and railroad congestion, defendant temporarily relieve plaintiff of its obligation under the contract to deliver screenings at the power house at $2.15 per ton, make a large purchase of a higher grade of coal than needed at the power house and pay a higher price. Under the law, notwithstanding the then existing car shortage and railroad congestion which had not been provided against except to the very limited extent as above noted, plaintiff was bound to carry out its contract and deliver coal as needed at the power house at $2.15 per ton delivered, and defendant was under no legal obligation to accept plaintiff’s proposition. And clearly under the facts disclosed immediate deliveries of coal were needed then at the power house. In 35 Cyc. 244, it is said:
“The general rule that no impossibility arising subsequent to the making of the contract will excuse the performance thereof is of course applicable to the contract of sale; and a seller who promises unconditionally to deliver takes the risk of being unable to perform, although his inability is caused by inevitable accident, or circumstances beyond his control.”
This is substantially the rule in this State, as disclosed from many decisions. In Bunn v. Prather, 21 Ill. 217, 218, it is said:
“When a party, by his own contract, engages to do an act, it is deemed his own fault and folly that he did not thereby expressly provide against contingencies, and exempt himself from responsibility in certain events; and in such case, therefore, that is, in the instance of an absolute and general contract, the performance is not excused by an inevitable accident, or other contingency, although not foreseen, by or within the control of the party. ’ ’
In Bacon v. Cobb, 45 Ill. 47, 52, it is said:
“The rule, from the earliest times to the present, is, when a party by Ms own contract creates a dnty or charge upon himself, he is bonnd to make it good, notwithstanding any accident by inevitable necessity, because he might have provided against it by Ms con-tl*9,(vfc * *
In Dehler v. Held, 50 Ill. 491, 493, it is said:
“As a general rule, where a party binds himself to perform an act, he is held to its performance, except where it is rendered impossible by the act of God or the public enemy. The mere fact that it may be inconvenient, or attended with loss, is no excuse.”
In Steele v. Buck, 61 Ill. 343, 347, it is said:
• “The rule is a just one, and has its foundation in reason, for, if he did not intend to bear the loss, it is natural to ,presume that he would have stipulated against it. It tends to promote justice by regarding the sanctity of contracts. In some instances it may work a hardship; so do all general rules; but they are none the less indispensable in the affairs of life for that reason.”
In Irwin v. Kelly, 176 Ill. App. 178, 181, which was an action for damages against defendants for failure to deliver certain coal as they had contracted to do and there was a shortage of cars, the Appellate Court for this district held that such shortage was no defense in such an action, the contingency not having been provided against in the contract.
It further appears from the evidence that plaintiff’s said letter of December 26 was received by defendant and read at a meeting of the defendant Commissioners on the same day, that plaintiff’s proposition was not accepted, and that defendant caused to be written its letter of the same date, but mailed on December 27, in which it made demand upon plaintiff for the immediate delivery of 1,000 tons of screemngs coal a,t the power house at the contract price of $2.15 per ton, and notified plaintiff that if it did not make such delivery defendant, under paragraph F of the specifications, would purchase coal in the open-market, etc. This létter was received by plaintiff in tbe afternoon of December 27, and later in tbe afternoon of that da:/ defendant, being greatly in need of coal at tbe power house, placed an order with tbe Consumers Company for 450 tons of screenings to be delivered at tbe rate of 50 tons per day at tbe then market price of $6.50 per ton. On December 29, defendant received plaintiff’s letter of that date, in which plaintiff took tbe position, in substance, and so advised defendant, that tbe latter’s action in making demand on December 26 for tbe immediate delivery of 1,000 tons of screenings under then existing conditions was unreasonable, and that defendant’s further action in purchasing coal from tbe Consumers Company at $6.50 per ton, with intent to charge plaintiff with tbe difference, was so unjust that as a consequence plaintiff declared tbe contract in question canceled. On January 3, 1917, defendant wrote plaintiff, refusing to consent to tbe cancellation of tbe contract, saying that defendant still wanted coal furnished by plaintiff at tbe contract price and making further demand therefor; and early in that month defendant mailed orders to plaintiff for coal needed at tbe power bouse and elsewhere under tbe contract for tbe month of January, but tbe orders were not filled by plaintiff and no further coal was furnished by plaintiff.
We think that a careful reading of plaintiff’s,letter of December 26 to defendant discloses that it is an acknowledgment by plaintiff of its inability to continue to fulfill its contract with defendant, so far as concerned tbe delivery of screenings at tbe power bouse, and that plaintiff would be compelled to breach that portion of its contract unless defendant was willing to consent to certain suggested modifications. This being so, defendant bad tbe right to take plaintiff at its word and act accordingly. (Follansbee v. Adams, 86 Ill. 13, 15.) Under paragraph F of tbe specifications, if plaintiff could not or would not deliver screenings, as needed, defendant had the clear right, under said paragraph and under the law (Sleuter v. Wallbaum, 45 Ill. 43, 45), to parchase a reasonable amount of screenings coal in the open market to meet its needs and to charge plaintiff with the difference between the then existing market price and the contract price. It is contended by counsel for plaintiff that defendant’s demand upon plaintiff, shortly after the receipt of plaintiff’s said letter, for the immediate delivery of 1,000 tons of screenings coal was an unreasonable one under conditions then existing, hut it may be said in passing that it evidently did not seem unreasonable to plaintiff to suggest to defendant that the latter make an “emergency purchase” of the same amount of mine run coal to be delivered “at once,” and at a price of $2.25 per ton more, than the contract price for screenings. Defendant, however, did not make a purchase of 1,000 tons of screenings in the open market but only 450 tons to be delivered at the rate of 50 tons per day. We think that, the actions of defendant, under the provisions of the contract and under the conditions then existing at its power house, were reasonable. (McLean County Coal Co. v. City of Bloomington, 234 Ill. 90, 100.) These actions of defendant were not, in our opinion, any justification for plaintiff’s attempted cancellation of the entire contract, as stated in its letter of December 29. That letter shows that before it was written plaintiff had been fully advised of the actions taken by defendant in purchasing a reasonable' amount of coal in the open market to meet its pressing needs. Apparently plaintiff was desirous, if possible, of being relieved from the obligations of its contract to deliver coal to defendant at the contract prices because of existing conditions, and seized upon defendant’s said letter of demand as a pretext to possibly bring about that result.
Our conclusion is that the verdict of the jury was contrary to the weight of the evidence and contrary to the law, that the court erred in refusing to grant defendant’s motion for a new trial and in entering the judgment appealed from, and that the cause should be remanded for a further trial.
Reversed and remcmded.
