158 N.E. 678 | Ill. | 1927
The Appellate Court for the First District affirmed a judgment entered in the circuit court of Cook county in favor of the S. Ward Hamilton Company and against the Channell Chemical Company. The record is before us as a return to a writ of certiorari.
October 3, 1919, plaintiff in error agreed to purchase from defendant in error 3,000,000 mop centers, and defendant in error agreed to manufacture and deliver the same within the time limit specified in the contract and at an agreed price. More than 2,000,000 of the mop centers were manufactured and delivered by defendant in error and plaintiff in error paid for them in full. By the contract plaintiff in error agreed to accept delivery of the entire 3,000,000 mop centers within eighteen months from the date of the first delivery, which was December 19, 1919. In July, 1921, when the contract by its terms should have been executed, there still remained nearly a million of the mop centers to be manufactured and delivered by defendant in error. Plaintiff in error notified defendant in error that it did not want any more of the mop centers and undertook to settle the claim of defendant in error and terminate the contract. The parties could not come to an agreement, so this action was brought in July, 1922.
After setting out the relation of the parties and the contract verbatim, the declaration concludes: "Plaintiff avers that in and by the terms of said contract the said defendant bargained and undertook to purchase one million five hundred thousand (1,500,000) small Triangular mop centers, seven hundred and fifty thousand (750,000) large Triangular mop centers and seven hundred and fifty thousand (750,000) Battleship centers, and agreed to pay, respectively, forty-six dollars and fifty cents ($46.50) per thousand, *364 fifty-one dollars and fifty cents ($51.50) per thousand and fifty-six dollars and fifty cents ($56.50) per thousand, and plaintiff promised to manufacture same and to deliver same to the defendant when made, and the defendant promised the plaintiff to accept of it the said mop centers when the same should be so made, and to pay the said price for the same on the delivery thereof as aforesaid. And plaintiff avers that thereafter the plaintiff delivered to the defendant two hundred sixty thousand eight hundred fifty-five (260,855) large Triangular mop centers, one million two hundred thirteen thousand one hundred eighty-four (1,213,184) small Triangular mop centers and six hundred fifteen thousand two hundred forty-four (615,244) Battleship centers, and thereafter the plaintiff, within the terms of the contract, did then and there make up a large quantity of mop centers and offered and was ready and willing to deliver to the said defendant the balance of the said mop centers as aforesaid, and requested the defendant to accept and pay for the same as aforesaid, yet the defendant did not, nor would then or at any other time, accept of the plaintiff the said mop centers or pay the price therefor, or any part thereof, but refuses so to do."
Where the seller treats a repudiation by the buyer as putting an end to the contract for all purposes of performance and sues for the profits he would have realized if he had not been prevented from performing, he must allege and prove performance on his part or a legal excuse for non-performance. (ChicagoWashed Coal Co. v. Whitsett,
Defendant in error claims that there is at most a mere variance between the allegations of the declaration and the *366
proof, and that plaintiff in error cannot take advantage of this variance because it did not make the specific objection on the trial. If the premise were true the rule is correctly stated. (Wabash Railroad Co. v. Billings,
There are many other questions presented by the assignment of errors, but the view we have taken of the case does not require a discussion of them.
The judgments of the Appellate Court and the circuit court are reversed and the cause is remanded to the circuit court of Cook county.
Reversed and remanded.
Mr. JUSTICE DEYOUNG took no part in this decision. *367