Long v. Conklin
| Decision Date | 30 September 1874 |
| Citation | 1874 WL 9183,75 Ill. 32 |
| Parties | JOHN LONGv.JAMES E. CONKLIN et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Cook county; the Hon. HENRY BOOTH, Judge, presiding.
Mr. ALLEN C. STORY, and Mr. RUFUS KING, for the appellant.
Messrs. SCOVILLE & BAYLEY, for the appellees.
This was an action of assumpsit, brought by appellees in the Circuit Court of Cook county, to recover damages from appellant for refusal to perform an alleged parol contract made by him on the 20th day of November, 1871, to sell and deliver to appellees what wood they would need, and as they would require it, for their brick-making business, at their two yards, during the brick-making season of 1872, at $6.50 per cord at one yard, and $6.75 per cord at the other, to be body beech wood.
The plaintiffs below recovered a verdict and judgment for $1,620 and the defendant appealed.
There is nothing in the point which is made, of a variance between the declaration and proofs, in that the contract is alleged to have been made on the 20th day of November, 1871, and the proof shows that it was made, if at all, in January, 1872.
The day of making the contract is laid under a videlicet, and according to the familiar rule of pleading is not required to be proved as laid. The fact of there being an issue upon a plea that the contract set forth was void under the statute of frauds, in not being by its terms to be performed within one year, does not vary the case, as is contended.
It is next insisted, that the court below erred in admitting evidence in relation to damages. It was in evidence that one of the plaintiffs, about the 10th of May, 1872, told the defendant they wanted a cargo of wood immediately, at their south yard, on the contract, and that the defendant denied the existence of any contract. And afterward, on the 21st of May, 1872, a notice in writing was served upon the defendant, to send to plaintiffs a cargo of wood on the next day. It is insisted by appellant that this denial by him of the existence of any contract between him and appellees, abrogated the contract, if one had been made, and that the breach occurred at that time; and that the measure of damages should be the difference between the prices named in the contract, and the market value of that amount of wood at the time of such breach, to be delivered through the brick-making season. The court below, against objection, allowed appellees to show the market price for wood all through the brick-making season, as they required it for use; and it is the admission of this evidence to which the objection is taken. The brick-making season, according to the evidence, was from about April 10 to November 10. The breach in this case would seem to have been a continuing one, occurring whenever through the season the necessities of appellees required the purchase of a cargo of wood. Appellant's denial of the contract in May did not release him from the obligation to deliver according to the contract, from time to time, through the season.
Appellees had a right to make purchases at the times when, by the contract, appellant was to have delivered the wood; that is, at the times they should need it through the season for use. The law would not compel them to buy all at...
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