Durham v. Thomas N. Gill.
| Decision Date | 30 September 1868 |
| Parties | JOHN DURHAMv.THOMAS N. GILL. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.
The facts in this case are fully stated in the opinion.
Mr. GEORGE F. HARDING, for the appellant.
Messrs. SCAMMON, MCCAGG & FULLER, for the appellee.
In February, 1867, Durham, the appellant, had about 10,000 bushels of corn in the crib, at Forest City, in Mason county. Being desirous of selling, in order to pay a debt about falling due, and meeting with Gill, the appellee, with whom he was well acquainted, and who was a commission merchant in Chicago, he stated his wishes, and requested Gill to ascertain on what terms a sale could be made in Chicago. Gill wrote, February 6th, stating two propositions he had received, one with an advance of money, and the other without, and on the receipt of this letter, Durham, who lived in Peoria, went to Chicago. Not receiving such an offer as satisfied him, he returned home, leaving the business in the hands of Gill, with instructions, as he swears, to get two offers for the corn, one with and the other without an advance, leaving to him the choice between them, as he might be able to raise the needed money in Peoria, and in that event, take the higher price for the corn without an advance. On the 13th of February, Gill wrote, they had not been able to make a sale, and saying: “You will please drop us a line to-morrow, and say if we shall make the sale as we talked, if can be done any time this week, or even longer time.” On the receipt of this, Durham telegraphed: “Hold on till further advice.” and on the 19th, sent to Gill a letter, as follows:
PEORIA, Ills., Feb'y 19, '67.
T. N. GILL, Esq., Chicago, Ills.:
Dear Sir:--I telegraphed to you to hold on, because Grier made me an offer of 55c at Forest City, which would have been better than the figures we talked of, but as that would include the shelling and loading on cars, I had rather take my chance in Chicago.
You will please sell it to the best advantage you can, exercising your own judgment whether to sell now or in a few days. The figures we spoke of--72 and 75--would be satisfactory to me.
Do the best you can.
Very truly yours,
J. DURHAM.”
On the receipt of this letter, Gill employed a broker, through whom a sale was effected, and the following contract signed:
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¦No.____ ¦BROKER'S CONTRACT. ¦
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¦5 cent revenue stamp. canceled.¦CHICAGO, 20th Feb'y, 1867.¦
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This certifies that I have this day bought of T. N. Gill & Co., for account of H. C. Russell, 11,000 or two boat-loads, all thousand bushels of No. one corn, as p. sample, at seventy-five cents afloat, per bushel, to be delivered at seller's option, during month of April, 1867.
To insure the fulfillment hereof, either party can call for margins during the life of this contract.
CLEMENS,
Agent and Broker.
On the same day, Gill advised Durham of the sale, and that the purchaser would advance 25 or 30 cents per bushel for a discount of two cents per bushel on the price, the advance to be made when the corn could be got into a warehouse, and the warehouse receipts sent to Chicago. To this, Durham replied in a tone of complaint, reminding Gill that his object in selling was to raise money for present use; that the understanding between them was, that the sale was to be made at two rates, of which Durham was to have the choice, and if he could not raise the money he needed in Peoria, he was to have the privilege of drawing for the advance. He further said he could not warehouse the corn for two or three weeks, as the railroad had been injured, but the corn was in his own cribs, and he could send his own warehouse receipt. After some further correspondence, in which Gill insisted on some other security for the delivery of...
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