169 Ill. 536 | Ill. | 1897
delivered the opinion of the court:
It has been settled by the judgments below that appellant was, at the time of the commencement of this suit, indébted to appellee for a balance under the contract, which, with interest thereon at five per cent, amounted to the sum recovered. It has also been finally determined as a question of fact, that when appellee gave appellant the notice of date October 1,1894, canceling the contract, appellant was in default in not having paid, within the period of ninety days fixed by the contract, balances for the previous month of June, of $1887.55. The condition had happened which, by the terms of the contract, gave appellee the right to terminate it. Appellee exercised that right and the contract thereupon came to an end. The fact that appellee accepted payment of the $1887.55 after it gave the notice was not a waiver of such notice nor a re-affirmation of the contract, as seems to be contended. The money was past due and owing whether the contract was canceled or not.
The point that interest was not recoverable is not well taken. The money had become due on an instrument of writing, and thereafter bore interest under the statute.
We are unable to find any error in the rulings of the trial court in refusing propositions submitted by the defendant to be held as law in the decision of the case. So far as they related to the alleged set-off filed by the defendant, they were properly refused. After the contract had been terminated by appellee, appellant gave notices that it had elected to continue it in force, first for another year and then for five years, under the eigh th section of the contract, and then claimed damages because appellee refused to furnish bicycles any longer under the contract which it had terminated. It cannot reasonably be contended that appellant could continue in force for the period of another year or years a contract which the other party had, in accordance with its terms, terminated, or that it.could, wdiile it was itself in default so that appellee had the right to terminate the contract, prevent such termination by giving notice of its election to continue it for a longer period. The right to elect to extend the duration of the contract depended, of course, upon such compliance by appellant with its terms that it would not be rescinded by the election of appellee for appellant’s alleged default. If extended it would still have been subject to rescission by appellee for failure to payaccording to its terms.
It is said the court erred in not taking into consideration a previous contract, preliminary to the one sued on, as explaining the meaning and intent of the latter. We cannot so hold. The contract sued on expressly provides that it took the place of all previous contracts. It was not ambiguous and its meaning was expressed by its own terms.
Finding no error, the judgment of the Appellate Court is affirmed.
TJudgment affirmed.
