John A. Roebling's Sons Co. v. Lock-Stitch Fence Co.

• Citation: 22 N.E. 518,130 Ill. 660
• Parties: JOHN A. ROEBLING'S SONS CO. v. LOCK-STITCH FENCE CO.
• Decision Date: 31 October 1889
• Court: Supreme Court of Illinois

130 Ill. 660

22 N.E. 518

JOHN A. ROEBLING'S SONS CO.

v.LOCK-STITCH FENCE CO.

Supreme Court of Illinois.

Oct. 31, 1889.

Appeal from appellate court, second district.

Action by the John A. Roebling's Sons Company, a corporation, against the Lock-Stitch Fence Company for defendant's failure to receive and pay for a quantity of fence-wire sold by plaintiff to defendant. Defendant obtained judgment, which was affirmed by the appellate court. Plaintiff appeals.

C. W. Brown and F. Bennitt, for appellant.

Geo. S. House, Geo. C. Fry, and James E. Babb, for appellee.

MAGRUDER, J.

The court below instructed the jury on behalf of the defendant as follows: ‘The court further instructs the jury that if they believe from the evidence the plaintiff and defendant made the contract for wire mentioned in the declaration; that the plaintiff entered upon the performance of the contract, and shipped to the defendant a part of the wire mentioned in the contract; that defendant received and accepted such part, and then notified the plaintiff not to ship any more of the wire,-then such notice excused the plaintiff from any further performance of the contract, and the plaintiff had no right to proceed further in the performance of the contract, unless such notice should be withdrawn by the defendant,’ etc. This instruction is manifestly erroneous. Where one party to a contract gives notice, before the time of performance arrives, that he does not intend to perform, the other party may treat such notice as a breach, and bring his action; or he may decline to accept such notice as a breach, and may insist that the contract shall continue in force up to the time fixed for its final performance, holding the party refusing to perform responsible for the consequences of such refusal. One party to a contract cannot, by simply refusing to carry out his part of it, compel the other party to rescind it. The latter has a right to keep it alive notwithstanding such refusal. This doctrine was clearly announced in Kadish v. Young, 108 Ill. 170. In the present case, a contract was made between appellant and appellee, by the terms of which the former agreed to sell to the latter 500 tons of fence-wire, and to deliver the wire so sold between March 7, 1885, and July 1, 1885. When the contract was made, appellant was engaged in shipping wire to appellee, under a former order not yet filled, at the rate of about 20 tons per week. Delivery under the new contract at the same rate was to begin after the completion of the old order. The last wire under the old order was not shipped until March 18, 1885, and deliveries under the new order did not become obligatory upon appellant until a week after that date, to-wit, on March 25, 1885. When the telegrams of April 27th, directing that shipments be stopped, and of April 29th, announcing that the wire would not be taken if shipped, were received at Trenton, appellant might have treated such telegrams as a breach of the contract, and might have proceeded at once to sue for damages on account of such breach; but appellant also had the right to consider the notice contained in the telegrams as inoperative, and to treat the contract as alive and subsisting. Appellant was at liberty to await the time when the contract was to be executed, and to hold appellee responsible for the non-performance of it. Hence the instruction which announced that ‘the plaintiff had no right to proceed further in the performance of the contract,’ etc., was calculated to mislead the jury. The appellant distinctly refused to stop the shipments of the wire. It thereby elected to continue the agreement in force. It kept the contract alive, not only for its own benefit, but also for that of the appellee. It remained liable to all its own obligations and liabilities under the contract. Kadish v. Young, supra. It was bound to show, upon the trial, that it was ready, willing, and able to perform its part of the contract. For this purpose it introduced testimony tending to prove that it shipped all the wire called for by the agreement to Joliet within the period required for delivery, and there tendered it to the appellee. It is unnecessary to discuss the question whether such shipments and tenders on the part of the appellant were actually required of it in order to show its readiness and ability to perform its part of the contract, in view of the positive and repeated announcement of the appellee that no more wire would be received after April 27, 1885. Whether or not the appellant was ready, willing, and able to perform the agreement after the notice of April 27th, and up to July 1st, was a question of fact to be determined by the jury from all the circumstances in the case, including...