Felsenthal v. Block
| Decision Date | 31 March 1881 |
| Parties | BENJAMIN FELSENTHAL ET AL.v.JOSEPH BLOCK ET AL. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding. Opinion filed March 29, 1881.
This was an action of assumpsit, brought by the appellees against the appellants, to recover damages for the non-performance of the following contract:
“CHICAGO, Dec. 27, 1879.
Bought of B. Felsenthal & Bros. the following stock, which is to be delivered between the first of January and the first of March, 1880, subject to sight-drafts, viz: from three to five car-loads of stove plates, at twenty dollars per 2,000 pounds, and from three to five car-loads of heavy cast iron, per $23, and the quantitat is at the option of the sellers. Further agreed, that instead of three car-loads, it shall be five car-loads of each, and that the stock is to be delivered at Cincinnati, Ohio.
BLOCK & POLLAK,
B. FELSENTHAL & BROS.”
Appellants failed to deliver any portion of the goods mentioned in the contract within the time agreed upon, and the evidence tends to show that the market price of said goods at and immediately before the expiration of the period fixed by the contract for their delivery was considerably higher than the contract price.
It was claimed by the appellants, in defense, that on the 17th day of February, 1880, the appellees agreed with them to extend the time for the delivery of goods for several weeks, and that before the expiration of the period of such extension, the price of said goods became greatly depreciated, so as to become considerably lower than the price fixed by the contract. It seems to be undisputed that such depreciation took place on or about the 15th of March, 1880, but upon the question of the extension of the time of delivery, the evidence was very conflicting. Considerable evidence was introduced to show the weight of an ordinary car-load of iron, but it seems to have been finally conceded that by the understanding of the parties at the time the contract was made, a car-load was to consist of 20,000 pounds.
Only one instruction was given to the jury at the instance of the appellees, and that was as follows:
“The jury is instructed for the plaintiffs, that the measure of damages in this case is the difference in price between the contract price and the market price at the place of delivery, on the last day of delivery, of so much of the iron as they believe from the evidence, was agreed to be delivered between the first day of January and the first day of March, 1880; if they believe from the evidence that no iron has been delivered prior to the first day of March, unless the jury believe from the evidence that the contract was extended beyond said first day of March, which the defendants must prove by a preponderance of the evidence, to entitle them to a verdict on that ground.”
The jury found a verdict for the appellees, assessing their damages at $300, for which sum and costs the appellees had judgment.
Mr. ADOLPH MOSES, for appellants; that the written contract was subject to the construction of the court, and the jury should be properly instructed as to its meaning, cited White v. Murtland, 71 Ill. 250; Lintner v. Millikin, 47 Ill. 178; Jordan v. Easter, 2 Bradwell, 73.
The instruction was erroneous, because it at once discusses the question of damages, thereby assuming there were damages: Small v. Brainard, 44 Ill. 355; Barrelett v. Bellgard, 71 Ill. 280.
Readiness on the part of appellees to receive the iron and pay for it when shipped, is ignored in the instruction: Hough v. Rawson, 17 Ill. 588; Capps v. Smith, 3 Scam. 177; Ruddock v. Belton, 7 Bradwell, 517.
As to the time of delivery under the contract: Atkins v. Boylston F. & M. Ins. Co. 5 Met. 439; Richardson v. Ford, 14 Ill. 332; Cook v. Gray, 6 Ind. 335; Merming v. McGaughey, 30 Ia. 205; Barker v. Bushnell, 75 Ill. 220.
Mr. W. W. EVANS, for appellees; that the burden of proving an extension of time is upon the party claiming it, cited Union Nat. Bank v. Baldenwick, 45 Ill. 375; Hinman v. Pope, 1 Gilm. 131.
An instruction which gives undue prominence to a portion of the...
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