Minnesota Lumber Co. v. Whitebreast Coal Co.

• Citation: 43 N.E. 774,160 Ill. 85
• Parties: MINNESOTA LUMBER CO. v. WHITEBREAST COAL CO.
• Decision Date: 11 October 1895
• Court: Supreme Court of Illinois

160 Ill. 85

43 N.E. 774

MINNESOTA LUMBER CO.

v.WHITEBREAST COAL CO.¹

Supreme Court of Illinois.

Oct. 11, 1895.

Appeal from appellate court, Second district.

Assumpsit, brought by the Whitebreast Coal Company, to recover the amount due for coal sold and delivered to the Minnesota Lumber Company. There was judgment for plaintiff, which was affirmed by the appellate court (56 Ill. App. 248), and defendant appealed. Reversed.Carnes & Dunton, for appellant.

Wm. Barge and Wm. McNett, for appellee.

This is an action of assumpsit, brought by appellee against appellant. The declaration consists of the common counts only. The bill of particulars is an account for coal, aggregating $19,739.97, at the price per ton named in the contract hereinafter set forth, upon which amount are credited payments and freight credits, aggregating $10,485.61, leaving a balance, claimed to be due, of $9,254.36. The pleas were the general issue and the two special pleas of set-off hereinafter set out. Demurrers were filed to the two special pleas, and sustained by the circuit court. The defendant elected to stand by its special pleas. A jury was then waived, by agreement, and the cause was submitted to the court for trial without a jury. The findings were in favor of the plaintiff, and judgment was rendered in its behalf for said balance of $9,254.36. The appellate court has affirmed the judgment, and the present appeal is prosecuted from such judgment of affirmance.

The second plea, or first special plea, alleges: ‘That plaintiff is indebted to defendant for damage because of its neglect and refusal to deliver to defendant coal, according to the contract of plaintiff with defendant, dated August 4, 1886, in words and figures as follows, to wit: ‘Polo, Ill., Aug. 4, 1886. Memorandum of contract between the Whitebreast Coal Company, by S. G. Russell, agent, and Minnesota Lumber Company: The said Minnesota Lumber Company agrees to buy its requirements of anthracite coal for season of 1886-1887 (upon condition named hereafter) of said Whitebreast Coal Company, which is to furnish the same as ordered (best quality of Scranton coal), at following prices, f. o. b. cars at Milwaukee or Chicago, at option of said M. L. Co., to wit: $4.35 per ton for egg and grate, and $4.60 for stove and nut, up to Nov. 1st; after which time said prices shall be advanced five cents per ton for the remaining term of this contract. Other sizes at proportionate prices. Payments on shipments to be settled on 15th of each month following shipment, in a sixty-day acceptance of said M. L. Co., without interest. In the event of lower prices than the above on standard anthracite coal being offered said M. L. Co., the said Whitebreast Coal Company agrees either to accept such lower prices on balance of coal not shipped, or release said M. L. Co. from further liability on this contract. It is further agreed that the prices last herein made shall apply to orders up to January 1, 1887. It is agreed that this contract shall be binding on both parties, provided the said M. L. Co. shall confirm the same by telegraph any time during this or the following day. [Signed] Whitebreast Coal Co., by S. G. Russell, Sales Agent Minnesota Lumber Co., by Geo. W. Perkins, Secy.’ That defendant's requirements of anthracite coal for the season, between the dates of August 5, 1886, and January 1, 1887, were 25,000 tons, and that it did confirm said contract by telegraph during the day following the making of said contract. That, in pursuance of said contract, it did order a large quantity of said coal to be shipped in cars from Milwaukee and from Chicago, and that plaintiff failed and neglected to fill any of said orders, although defendant avers that it was ready, willing, and able, and offered at all times, to fulfill its part of the contract, whereby damage accrued to defendant, to wit, said sum of $25,000. That, at and before the making of said contract, defendant was extensively engaged in the purchase, use, and sale of anthracite coal in the ordinary course of its business, and that its requirements for such coal, in the ordinary course of its business, for the season of 1886 and 1887, were a very large amount, to-wit, the amount of 50,000 tons, all of which was well known by plaintiff.'

The third plea, or second special plea, alleges: ‘That plaintiff is indebted to defendant for damage because of the neglect and refusal of plaintiff to deliver to defendant a large quantity, to wit, 10,000 tons, of coal, according to the contract of plaintiff with defendant, which contract, dated August 4, 1886, and the modification thereof, dated August 21, 1886, are in words and figures as follows, to wit: [Here follows, verbatim et literatim, the contract of August 4, 1886, as the same is above set out in the second plea.]’ After so setting out the contract of August 4, 1886, the third plea proceeds to give the modification thereof, as made on August 21, 1886, in the words and figures following, to wit: ‘Whereas, a dispute has arisen between the parties to the within instrument, it being claimed by the Whitebreast Coal Company that the said instrument does not constitute a valid engagement upon their part to furnish coal, which claim is denied by the said Minnesota Lumber Company: Now, therefore, in order to arrive at an amicable settlement of the dispute pending, it is mutually agreed by the said Whitebreast Coal Company and the Minnesota Lumber Company that the said alleged contract shall be performed upon the following conditions and exceptions: Coal shall be billed and paid for at the rate of $4.45 per ton for egg and grate, and $4.70 for stove and nut and No. 4. As soon as convenient hereafter each of the parties hereto shall choose an arbitrator, they to choose a third, which three arbitrators, upon a hearing of the respective claims of each of the parties, shall decide whether the Minnesota Lumber Company is entitled to its coal at the price named in the within alleged contract of August 4th. In case of an affirmative decision of this question, the Whitebreast Coal Company shall rebateto said Minnesota Lumber Company the difference between said contract prices and the amended prices mentioned herein. In case of a negative decision, the said amended prices shall be in final settlement of the coal. It is agreed that the coal shall be settled for in sixty-day paper as before mentioned, and it shall also be decided by said arbitrators whether the paper shall be with or without interest. It is agreed that this arbitration shall be made under the statute of the state of Illinois. It is agreed that the Whitebreast Coal Company shall pay the Minnesota Lumber Company the difference between the prices fixed by arbitration and the cost price upon all coal ordered by Minnesota Lumber Company between August 4, 1886, and the date hereof. It is also agreed that the Minnesota Lumber Company shall have the privilege, under this contract, of ordering any quantity of coal, not in excess of 12,000 tons, which agreement is in lieu of stipulation for requirements; this amount of coal ordered between August 4th and date not to exceed 200 tons. It is distinctly understood and agreed that neither party hereto waives any of the respective rights heretofore claimed. Polo, Ill., August 21, 1886. Minnesota Lumber Company, by Geo. W. Perkins, Sec. Whitebreast Coal Company, by C. K. Pittman, Gen. Agt.’ The plea further averred that the sole and only cause of action in plaintiff's declaration is for the price of coal delivered in part performance of said contract; that the modification, dated August 21, 1886, was made and assented to by defendant at the request of plaintiff, and for the purpose of limiting and restricting defendant to the amount of 12,000 tons of coal, which it should, and had the right to, purchase under said contract, as amended, for the season of 1886 and 1887; that plaintiff, after having delivered a small portion of the coal contracted to be delivered by said contract, to wit, 2,000 tons, neglected and refused to ship and deliver to defendant the balance of said 12,000 tons upon the order and request of defendant, although defendant was at all times ready, willing, and able to, and did, keep and perform the terms of said contract on its part; that it did, at divers times, request plaintiff to deliver the balance of said 12,000 tons, according to said contract, which plaintiff neglected and refused to do, whereby damage accrued to defendant, to wit, said sum of $25,000; that, at and before the making of said contracts, defendant was extensively engaged in the purchase, use, and sale of anthracite coal, in the ordinary course of its business, and that its requirements for such coal, in the ordinary course of its business, for the season of 1886 and 1887, were a very large amount, to wit, the amount of 50,000 tons, all of which was well known by plaintiff at the time of making said contracts.

Both pleas tender set-off of the alleged damages, and pray judgment.

MAGRUDER, J. (after stating the facts).

The first point discussed by counsel on both sides is whether the trial court erred in sustaining the demurrer to the second plea, which sets up the contract of August 4, 1886. It is insisted by appellee that the demurrer to that plea was properly sustained, upon the alleged ground that the contract of August 4th was void for uncertainty, and for want of mutuality. After a careful consideration of the terms of the contract, we do not think that it can be regarded as void, for the reasons stated. It is said by counsel for appellee that the amount or quantity of appellant's ‘requirements' of anthracite coal for the season of 1886-87 is not fixed by the contract, and that for this reason it is wanting in certainty, and that the contract does not bind appellant ‘to require’ any coal, and for this reason is wanting in mutuality. Contracts should be construed in the light of the circumstances...