Iroquois Furnace Co. v. Elphicke

• Decision Date: 16 December 1902
• Citation: 65 N.E. 784,200 Ill. 411
• Parties: IROQUOIS FURNACE CO. v. ELPHICKE et al.
• Court: Illinois Supreme Court

200 Ill. 411

65 N.E. 784

IROQUOIS FURNACE CO.

v.ELPHICKE et al.

Supreme Court of Illinois.

Dec. 16, 1902.

Appeal from appellate court, First district.

Action by C. W. Elphicke & Co. against the Iroquois Furnace Company. From a judgment of the appellate court (102 Ill. App. 138) reversing a judgment for defendant, and rendering judgment for plaintiffs, defendant appeals. Affirmed.Defrees, Brace & Ritter, for appellant.

C. E. Kremer and C. W. Greenfield, for appellees.

This is an action of assumpsit brought by appellees, C. W. Elphicke & Co., against the appellant, the Iroquois Furnace Company, to recover damages for an alleged breach of contract. The contract was in writing, and was executed in February, 1891. The original declaration was filed on September 7, 1892. To the original declaration the plea of general issue was filed. On February 13, 1901, two additional counts were filed. To these additional counts the plea of the general issue was filed, and also a plea of the five-years statute of limitations; that is to say, a plea, alleging that the causes of action set up in the additional counts did not accrue within five years next before the filing of the same. To the plea of the statute of limitations, filed by the defendant below, the plaintiffs below filed a replication setting up that the cause of action in the additional counts was based upon a written contract, and that therefore the same accrued to the plaintiffs within 10 years before the filing of said counts. A demurrer was filed by the defendant to said replication of the plaintiffs. This demurrer was overruled, and the defendant below elected to stand by its demurrer. The cause went to trial upon the pleadings as thus stated, and, jury having been waived, the cause was submitted to the court, and tried, by agreement, without a jury. The plaintiffs below presented to the court seven propositions to be held as law in the decision of the case. Of these, propositions numbered 1 and 2 were held by the court, and the others were refused. The defendant below submitted no propositions of law. The trial court found the issues for the defendant, and entered judgment against the plaintiffs below for costs, after overruling motion for new trial. An appeal was taken to the appellate court. The appellate court reversed the judgment of the circuit court, without remanding the cause, and entered judgment in favor of the plaintiff's below for $3,727.50, embodying a finding of facts in the judgment. The present appeal is prosecuted from the judgment so entered by the appellate court.

At Chicago, on February 6, 1891, C. W. Elphicke & Co., plaintiffs below and appellees here, addressed to S. Frank Eagle, the president of the appellant company, the following letter: ‘In pursuance of our talk and understanding with you at our office on the 5th inst., we propose to freight the 60,000 tons of ore for your furnace at South Chicago at prices agreed upon, to wit: From Escanaba, 50 cents per gross ton; from Marquette, 95 cents; and from Ashland or Two Harbors, $1.05,-free on board vessel, except trimming; and the unloading to be free of expense to vessel. In view of the low rates given you, it must be understood that vessels shall have quick dispatch in loading and unloading. It is further agreed, should you decide to put in more ore, we are to freight the same at the rate of freight and conditions as above; ore to be freighted between the opening of navigation and the 30th of October next, or as we may agree.’ To this letter, at Youngstown, Ohio, on February 22, 1891, the appellant, the Iroquois Furnace Company, by its said president, returned the following answer, to wit: ‘Your favor of the 6th inst. duly received. Your statement of agreement for carrying ore is correct, and we confirm the same. Since meeting your Mr. Fitch, we have let the contract for Champion hoist, and work of erection begins next Monday.’ The proof shows that in 1891 the opening of navigation was on April 20th. The original declaration consisted of one special count upon the written contract above set forth, and also the consolidated common counts. The special count of the declaration alleged that the plaintiffs submitted to the defendant the written proposition embodied in the letter of February 6, 1891, and that the defendant accepted the proposition. The declaration also avers that defendant below (appellant here) agreed with plaintiffs to commence to furnish them with said ore for transportation at the opening of navigation for the season of 1891 at the times and places above mentioned, and to give plaintiffs prompt dispatch in the carrying, loading, and unloading of said ore; that plaintiffs were ready at the opening of navigation for said season to perform and carry out their agreement, but that defendant did not furnish the ore as required by the contract, but for three months failed to furnish the same, and to give the vessels of plaintiffs prompt dispatch in the carrying and transportation of same, as required by the agreement, and delayed the loading of said vessels at the places aforesaid, and the unloading of the same at the place of destination, and did not give the vessels of plaintiffs prompt dispatch, according to the tenor and effect of said agreement, to the damage of the plaintiffs in the sum of $15,000.

MAGRUDER, C. J. (after stating the facts).

Upon the trial of this case in the circuit court before the court without a jury, the finding and judgment were in favor of the present appellant, the defendant below. Upon appeal to the appellate court, that court reversed the judgment in favor of the appellant, and entered an original judgment in favor of the present appellees, who were the plaintiffs below. The judgment of the appellate court, after the usual formal recital, was as follows: ‘Therefore it is considered by the court that for that error, and others in the record and proceedings aforesaid, the judgment of the circuit court of Cook county in this behalf rendered be reversed, annulled, and set aside, and wholly for nothing esteemed. The court finds that appellants' vessels were delayed by the fault of appellee in all forty-six (46) days, and appellants suffered damages for such delay to the amount of three thousand seven hundred twenty-seven and 50/100 ($3,727.50) dollars; and it is further considered by the court that the said appellants recover of and from the said appellee the sum of three thousand seven hundred twenty-seven and 50/100 ($3,727.50) dollars, and their costs by them in this behalf expended, to be taxed, and that they have execution therefor.’ The appellate court has recited in its final judgment the facts as found by it, and has therefore made a finding of the facts concerning the matter in controversy in the suit different from the finding of the circuit court. This being so, the judgment of the appellate court is final and conclusive as to the matters of fact in controversy. The facts so found by the appellate court and incorporated in its final judgment must be the ultimate facts as set up in the pleadings, and not the merely subordinate or evidentiary facts which contribute to the establishment of the ultimate fact or facts. Brown v. City of Aurora, 109 Ill. 165;Insurance Co. v. Pulling, 159 Ill. 603, 43 N. E. 762;Davis v. Chicago Edison Co., 195 Ill. 31, 62 N. E. 829;Hogan v. City of Chicago, 168 Ill. 551, 48 N. E. 210. The question, then, is whether the judgment of the appellate court is warranted by its finding of facts. Town of Bristol v. Town of Fox, 159 Ill. 500,42 N. E. 877; Hogan v. City of Chicago, supra; Davis v. Chicago Edison Co., supra; Manistee Lumber Co. v. Union Nat. Bank of Chicago, 143 Ill. 490, 32 N. E. 449.

The appellant here contends that the finding of the appellate court does not sustain its judgment, upon the alleged ground that it does not make a finding upon all the issues made by the pleadings, and raised by evidence properly admissible under the pleadings. In support of this contention, cases are referred to, holding that the finding of the appellate court, in order to support its judgment, must include every material issue submitted to the trial court. Insurance Co. v. Scammon, 123 Ill. 601, 14 N. E. 666;Neer v. Railroad Co., 138 Ill. 29, 27 N. E. 705;Hawk v. Railroad Co., 138 Ill. 37, 27 N. E. 450; Hogan v. City of Chicago, supra; Hayes v. Insurance Co., 125 Ill. 626, 18 N. E. 322,1 L. R. A. 303. It is said that one of the issues was whether the parties made the contract offered in evidence, and that the judgment makes no finding upon this issue. In reply to this, it may be said that there was no controversy between the parties as to the execution of the written contract, and therefore a finding upon that subject was unnecessary. It is also said that issues were made upon the trial below upon the following questions: Whether there was a breach of the contract by appellant; whether the appellees suffered damages, and if so, to what amount, by reason of such breach; whether there was a waiver of the alleged breaches, or satisfaction of the damages, by the acts and conduct of the parties; and whether the claim of appellees is barred by the statute of limitations.

It is conceded that the finding embodied in the judgment states the amount of damages suffered by appellees; and, very clearly, it also recites that ‘appellants [appellees here] suffered damages' for the delay alleged in the declaration. Embodied in the finding ‘that the appellants' vessels were delayed by the fault of appellee, in all, forty-six (46) days,’ is the finding that there was a breach of the contract by the present appellant. The contract was that the vessels of appellees should have ‘quick dispatch in loading and unloading.’ This involved the guaranty or agreement on the part of the present appellant that there should be no unreasonable delay in the loading of the vessels at the points from which the ore was to be shipped, or in...