Harman v. Washington Fuel Co.

• Decision Date: 02 October 1907
• Citation: 228 Ill. 298,81 N.E. 1017
• Parties: HARMAN et al. v. WASHINGTON FUEL co.
• Court: Illinois Supreme Court

228 Ill. 298

81 N.E. 1017

HARMAN et al.

v.WASHINGTON FUEL co.

Supreme Court of Illinois.

Rehearing Denied Oct. 2, 1907.

Appeal from Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; Robert W. Wright, Judge.

Action by William S. Harmon and another, partners doing business as the Harman & Black Coal Company, against the Washington Fuel Company. From a judgment of the Appellate Court affirming a judgment for defendant, plaintiffs appeal. Reversed and remanded.

Leslie H. Whipp, for appellants.

J. B. Langworthy, for appellee.

CARTWRIGHT, J.

This action of assumpsit was commenced by appellants, partners doing business as the Harmon & Black Coal Company, in the superior court of Cook county, against appellee, the Washington Fuel Company, a corporation mining and selling coal, to recover damages for breaches of two contracts in writing dated June 1, 1902, whereby the defendant agreed to furnish coal to the plaintiffs for stipulated prices per ton at its mine at Sullivan, Ind., subject to strikes, car supply, railroad blockades, and other contingencies beyond its control. By one contract defendant agreed to furnish plaintiffs with 5,000 to 8,000 tons of Bunker Hill 4-inch lump coal from the date of the contract to April 1, 1903, at $1.40 per net ton, f. o. b. cars at mine; shipments to be made at the rate of one to two cars per day. By the other contract defendant was to furnish 5,000 to 7,000 tons of Bunker Hill 1 1/4-inch lump coal from the date of the contract to April 1, 1903, at $1.15 per net ton, f. o. b. cars at mine. By the affidavit of plaintiffs' claim filed with the declaration, a set-off of $1,231.12 was admitted to be due the defendant, and the sum of $4,000 was claimed after allowing the set-off. The defendant pleaded the general issue, with an affidavit of merits and a set-off of said sum of $1,231.12 for coal furnished in March, 1903, and not paid for. On the trial it was agreed that all the coal that was delivered under the contract for 4-inch coal was 2,513 tons and under the contract for 1 1/4-inch coal 3,808 tons, all of which was paid for except coal amounting to $1,231.12. Plaintiffs proved that the market price of coal at the mine advanced beyond the contract price in the latter part of November, 1902; that the defendant then ceased to ship coal under the contract; that the price of coal remained very high thereafter; and that plaintiffs suffered damages far beyond the amount of the set-off. At the close of all the evidence, the court instructed the jury to return a verdict against the plaintiffs for $1,231.12, the amount of the set-off, which was done, and thereupon the court rendered judgment on the verdict, and plaintiffs prosecuted an appeal to the Appellate Court for the First District. The branch of that court affirmed the judgment, and a further appeal was prosecuted to this court.

The record shows that the trial court construed the contracts in such a way that under the admitted facts there was no breach of either. If that construction was correct, there was neither cause of action nor damages, and, as a matter of course, the trial court refused to consider the question of damages at all. Although proof of substantial damages had been made in a general way, and plaintiffs desired to make definite proof of the amount of such damages, it was not done because of the ruling and decision of the court. The Appellate Court did not sustain the view of the trial court, but decided that no error was committed in giving the peremptory instruction because there was no sufficient evidence of damages suffered by the plaintiffs from which the jury could have made a computation of the amount. In the opinion of the Appellate Court, it was said that the breach of the contract for 1 1/4-inch coal occurred on April 1, 1903, and there was no evidence of any difference on that day between the contract and market prices; that, as to the contract for 4-inch coal, the only evidence was the testimony of a witness that, taking the figures which he had given the jury, and computing the difference between the contract price and the market price, the damages amounted to ‘ten thousand seven hundred and seventy-nine dollars and some odd cents'; and that such statement was a mere conclusion of the witness, and insufficient evidence of the amount of damages. The effect was that the plaintiffs were defeated upon one ground in the trial court, and the judgment of the trial court was affirmed in the Appellate Court on a different ground, which, in our opinion, did not justify the court in directing a verdict.

The defendant had all of the time up to April 1, 1903, in which to furnish plaintiffs with the coal under the contract for 1 1/4-inch coal. The parties evidently contemplated delivery from time to time, since the contract provided that settlements should be made on or before the first of each month for the previous month's shipment, and shipments were actually begun in August, 1902, under the contract, and were continued until the market price of coal rose above the contract price, and yet the agreement would have been complied with by a delivery of the coal at any time up to April 1, 1903. Phelps v. McGee, 18 Ill. 155. There was no evidence of the market price of coal at the mine on that day, and only nominal damages could have been given for the breach of that contract. The other contract provided for shipments at the rate of one or two cars per day, and defendant was bound to ship at least one car every day, subject to the conditions stated in the contract. Beginning in September, 1902, defendant shipped coal as agreed until the market price at the mine advanced considerably above the...