McLean Cnty. Coal Co. v. City of Bloomington

• Decision Date: 23 April 1908
• Citation: McLean Cnty. Coal Co. v. City of Bloomington, 234 Ill. 90, 84 N.E. 624 (Ill. 1908)
• Parties: McLEAN COUNTY COAL CO. v. CITY OF BLOOMINGTON.
• Court: Illinois Supreme Court

234 Ill. 90

84 N.E. 624

McLEAN COUNTY COAL CO.

v.CITY OF BLOOMINGTON.

Supreme Court of Illinois.

April 23, 1908.

Appeal from Appellate Court, Third District, on Appeal from Circuit Court, McLean County; C. D. Myers, Judge.

Action by the McLean County Coal Company against the city of Gloomington. From a judgment for plaintiff for less than the relief demanded, it appeals. Reversed and remanded.Spencer Ewing (James S. Ewing, of counsel), for appellant.

Louis Fitzhenry, City Atty., for appellee.

Appellant sued appellee in assumpsit to recover $1,060.33, the contract price of coal sold and delivered during the month of March, 1906. The general issue was pleaded by appellee and notice given of a special defense, consisting of a set-off growing out of the failure of appellant to deliver coal promptly, as ordered, during the said month of March. On account of this failure to deliver said coal appellee purchased about 500 tons in the open market, for which it was obliged to pay $578.32 in excess of the price stated in the contract. A jury was waived, and on a trial by the court appellee's set-off was allowed, and judgment was entered in favor of the appellant for $482.01. This judgment was affirmed in the Appellate Court, and an appeal was thereupon prayed to this court.

The contract in question was executed June 1, 1905, the provisions essential to the case at bar being substantially as follows: After reciting, among other things, the acceptance of the bid of the second party and the giving of a bond for faithful performance, the contract continues: ‘Which bond, together with the bids and the request for bids, are hereto attached and by reference thereto made a part of this contract. The said second party agrees to supply said first party for all of its departments and for whatever other coal it may agree to supply at its expense either for charitable purposes or other purposes, third vein screened lump coal as follows: (Then follow the prices and the various places in the city where the coal is to be delivered.) Said second party further agrees that coal of the kind and quality specified herein shall be delivered promptly as ordered, and that upon failure to make deliveries as ordered, the said city of Bloomington shall have the right either to forfeit this contract or go into open market and buy coal for its use at the current market price, and the said McLean County Coal Company agrees to pay the said city of Bloomington, in case said city of Bloomington purchase coal in the open market, the entire excess of cost of such coal over and above the contract price herein specified. It is further agreed that this contract shall hold good for one year from the first of July, 1905, and that said second party during the time of any strike at its mine shall not be required to deliver coal as herein specified, provided said strike prevents the operation of the mine. Neither shall the said second party be required to deliver coal under this contract in case of unavoidable accident which may prevent the operation of the mine, it being the sense of this contract that so long as the said second party has coal of the kind and quality described herein for sale, or so long as its mine may be in operation during the continuance of this contract, the said second party shall furnish the coal herein required of it. Said first party agrees to pay said second party for said coal the price herein specified upon itemized monthly bills, to be presented to the city council of the city of Bloomington at the first meeting after which said bills may have been examined and approved by the departments ordering the coal in said bills described, said second party to make out bills for each department ordering coal, separately. The amount of coal ordered by said city in any one month shall not be lumped in any one bill.’

The request for bids was dated May 8, 1905, and asked that sealed proposals for furnishing coal to said city for the fiscal year ending April 30, 1906, be delivered at designated places ‘as needed, * * * and at all other places in the city where the city may desire to deliver coal, said coal to be of the best quality and to be delivered as fast as is required. * * * The quantity required will be 3,000 tons, more or less.’ The bid of appellant was dated May 19, 1905, and stated that it offered coal for the city for the year ending April 1, 1906, at certain prices, and ‘all coal to be * * * delivered at such times and in such quantities as you may direct.’

The case was heard upon a stipulation of facts, being, so far as affects this issue, substantially as follows: That there were rumors of a strike 45 days prior to April 1, 1906, and that the strike was called three days before April 1st, to take effect, as it did, on this last-named date; that the strike was called off June 1st and the mine resumed operations; that during the month of February, 1906, appellee ordered and appellant delivered 890 tons of coal; that during the following month of March it ordered and appellant delivered 562 tons but failed to deliver all the coal ordered by appellee; that it delivered no coal after March 24th until June 1, 1906; that during March, after failure of appellant to deliver all the coal ordered, said appellee purchased 500 tons in the open market at the current market price; that from June 1, 1906, until the expiration of the contract, July 1, 1906, coal was delivered as ordered, under said contract, and accepted and paid for; that appellee had on hand at the waterworks on April 1, 1906, 900 tons of the coal delivered by appellant in addition to said 500 tons that it had bought of other parties in the open market, and that on June 1, 1906, it still had remaining unused of said coal 600 tons.

CARTER, J. (after stating the facts as above).

The stipulation of facts shows that from the date of the contract coal was delivered every month up to and including March, 1906; that the amount delivered in February, 1906, was substantially a third again as much as was delivered in any other month and double the amount delivered during several of said previous months; that the amount delivered from March 1 to 24, 1906, inclusive, was nearly as great as any previous month, with the exception of February, and that there had been delivered under the contract, up to March 24, 1906, 6,543 tons.

In construing a written contract the court will endeavor to place itself in the position of the contracting parties, so that it may understand the language used in the sense intended by the persons using it. Field v. Leiter, 118 Ill. 17, 6 N. E. 877. When the terms of a written agreement are in any respect uncertain or doubtful and the persons by their own conduct have placed a construction upon them which is reasonable, such construction will be adopted by the court, and therefore evidence of acts showing the practical construction of the instrument by the parties themselves is admissible. Carroll v. Drury, 170 Ill. 571, 49 N. E. 311;Burgess v. Badger, 124 Ill. 288, 14 N. E. 850;People v. Murphy, 119 Ill. 159, 6 N. E. 488. It is contended by appellant in this connection that it furnished appellee coal to April 30, 1905, under a contract similar to the one here in question. There is no evidence in the record upholding this contention,...