121 Ill. App. 292 | Ill. App. Ct. | 1905
delivered the opinion of the court.
We have given the substance of the evidence offered, not for the purpose of weighing it, but as the basis for the discussion of the questions of law raised on the record. We express no opinion upon the facts.
The lumber contract provides: “All the above stock to be dressed and loaded as ordered by said Browne-Chapin Lumber Company, f. o. b. cars Sagola, Michigan.”
The shingle contract after specifying the amount of *A* shingles to be manufactured and the period of time therefor provides: “Also what extra Ho. 1 shingles Browne-Chapin Lumber Company may require to. fill their orders in part carloads,” and then after specifying the prices for the different grades of shingles provides: “At which prices the said shingles are to he delivered f. o. b. cars at Sagola, branded as directed, and loaded on orders and at direction of BrowneChapin Lumber Company, or their authorized agent or employe.”
Thus it appears that appellees (plaintiffs) under the lumber contract must first give directions for the dressing and loading of the lumber before apellant had a right to or could be required to ship it; and under the shingle contract plaintiffs must give orders and directions as to branding and loading before appellant could be required to deliver.
Where a contract of sale provides that certain acts are to be performed by the buyer before the seller is bound to ship or deliver the goods purchased, the buyer must show performance of such acts to enable him to recover damages for a failure on the part of the seller to ship or deliver the goods. 2 Meacham on Sales, Secs. 1081, 1082 and 1123; 2 Schouler’s Personal Property, Secs. 281 and 285; L., N. A. & C. Ry. Co. v. Iron Co., 126 Ill. 294; Weill v. Am. Metal Co., 182 Ill. 128; Penn. Coal Co. v. Ryan, 107 Ill. 226. This principle is elementary and it is not and cannot be controverted.
Under the law a compliance with these provisions of the contracts required appellees to prove that certain specific orders were given describing the kind and quantities of lumber and shingles required with directions as to brands and shipments and when and whére the same were to be shipped, and that such orders were not filled by appellant within a reasonable time thereafter. Until this was done appellant was not in default.
On the trial appellees offered testimony tending to show in a general way that orders were given to appellant for lumber and shingles, which were not filled promptly; but no proof was made of orders given for a specific quantity, kind and grade of lumber and shingles with directions as to how the lumber should be dressed or shipped as provided in the contracts.
This is an action to recover damages for non-delivery of the lumber and shingles according to the provisions of the contracts of sale. The law is that where goods are,to be delivered in installments, or as required by the purchaser, as in this ease, the true measure of damages is the difference between the contract price and the market prices or values at the different times when such articles were required or ordered. Smith v. Dunlap, 12 Ill. 184; Phelps v. McGee, 18 Ill. 155; Sleuter v. Wallbaum, 45 Ill. 43; Deere v. Lewis, 51 Ill. 254. And it is the difference between the contract price and market price on the day or at the time of the failure to deliver and not on some other day or time.
The evidence must show the date of the demand, the failure to deliver and the contract and markfet prices at the date delivery should have been made. It was incumbent upon appellees to prove these facts as to each order for lumber and shingles, in order to lay the foundation for damages and furnish the tr.ue measure thereof. Appellees made no attempt, as shown by the record, to meet these requirements. Evidence as to the range of market values from the dates of the contracts until some time in the year 1891 was offered by appellees. But the evidence did not tend to fix the market prices at any particular time or times when orders were given or the lumber or shingles should have been shipped, This left the jury to guess or speculate as to the amount of the actual damages suffered by appellees. This was clearly erroneous.
The admission of the testimony of Mr. Browne as to the computation of damages on the basis, of an average advance of twenty cents in the market value of shingles had* no foundation in the evidence, and was therefore error. This is also true of his evidence as to the lumber. This method of prov- • ing damages has no sanction in the law, where the evidence before the jury, as in this case, does not give them the es-, sentíal elements for the assessment of damages.
The verdict includes damages for shipments of lumber to persons at Iron Mountain.' The uncontroverted testimony is that these shipments were for the use of the Iron Mountain yard under the reservation in the contract. In this regard and as to such items the verdict was contrary to the evidence.
The evidence of the shipments to Kelley & Co. should have been excluded for the reason that the evidence of the invoice prices to Kelley & Co. afforded no legal basis or rule of damages.
For the errors above indicated the judgment is reversed and the cause remanded.
Reversed and remanded.
