Sanborn v. Benedict

• Decision Date: 30 September 1875
• Citation: 1875 WL 8479,78 Ill. 309
• Parties: BENJAMIN F. SANBORN et al.v.JAMES A. BENEDICT.
• Court: Illinois Supreme Court

78 Ill. 309

1875 WL 8479 (Ill.)

BENJAMIN F. SANBORN et al.

v.JAMES A. BENEDICT.

Supreme Court of Illinois.

September Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Winnebago county; the Hon. WILLIAM BROWN, Judge, presiding.

Mr. C. M. BRAZEE, for the appellants.

Messrs. WARNER & SUMNER, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

The plaintiff, James A. Benedict, was a farmer, residing near Pecatonica, in Winnebago county, engaged in raising corn. The defendants, Benjamin F. and George W. Sanborn, and Thomas Mahaffey, are grain dealers in Pecatonica, having there a warehouse for the storage of grain. About the middle of June, 1872, the plaintiff and Benjamin F. Sanborn met in the village of Pecatonica, and had a conversation about corn. Plaintiff said he would sell corn at fifty cents per bushel, and would contract for that. Benjamin Sanborn said he would take it, and notify him when he would call for it; that he would give him ten days' notice. Two thousand bushels was the quantity, and the price fifty cents per bushel. Sanborn then said, “60 pounds.” Plaintiff said, “No, 56,” meaning the corn should weigh 56 pounds to the bushel. To this, Sanborn assented. Plaintiff then said he wanted a little money on the corn, and Sanborn paid him ten dollars. There was some talk about the prospect for corn that season, plaintiff being confident there was time enough for a good crop, and Sanborn doubtful.

On this contract, plaintiff brought an action of assumpsit, in the Winnebago circuit court, alleging, in the first count of his declaration, that, on the 5th of June, 1872, the defendants bargained for and bought of the plaintiff, and the plaintiff then and there sold to the defendants, two thousand bushels of corn, of 56 pounds to the bushel, at the rate of fifty cents per bushel, to be delivered at Pecatonica by the plaintiff to the defendants within a period of ten days after defendants' request, and to be paid for by the defendants to the plaintiff on the delivery thereof; and, in consideration thereof, and that the plaintiff had then and there promised to deliver the corn to the defendants in the time and at the place aforesaid, the defendants promised the plaintiff to accept the same of and from the plaintiff, and to pay him for the same on the delivery thereof; and, although the plaintiff afterwards, and at divers times after making this contract, to-wit: on the 1st day of June, 1873, at Pecatonica, was ready and willing, and then and there tendered and offered to deliver the corn, and then and there requested the defendants to accept the same and pay him therefor, the defendants would not accept or pay, but wholly refused, etc., by means whereof the defendants became liable to pay the plaintiff one thousand dollars.

The second count is the same as the first, with this exception: To be delivered at Pecatonica by the plaintiff to the defendants, but at no definite or specified time, by means whereof defendants became liable to accept the corn within a reasonable time thereafter, defendants agreeing to pay for the corn on delivery, in consideration of which, and that plaintiff had then and there promised to deliver the same at the place and in the time, etc., defendants promised to accept the same and pay him therefor; and, although the plaintiff, at divers times thereafter, and on the 1st day of June, 1873, being such reasonable time, at Pecatonica, was ready and willing, and then and there tendered and offered to deliver, and requested defendants to accept the corn and pay for the same, they did not nor would accept and pay for the same, whereby they have become liable to pay plaintiff one thousand dollars.

The third count is the same, with this exception as to delivery: To be delivered at Pecatonica, at any time within ten days after demand by defendants, and to be paid for on delivery, and, by the terms of said contract, no definite and specific time being fixed for the delivery, defendants became legally bound to demand and accept the corn within a reasonable time thereafter, to-wit: within the period of one year from the making of the contract; and in consideration thereof, and that plaintiff had promised to deliver the corn at the place and in the time, etc., the defendants promised to accept and demand the corn, and to pay for the same on its delivery; and, although the plaintiff afterwards, and at divers times after the making of the promise by defendants, and on June 1, 1873, being such reasonable time, and at other times prior thereto, at Pecatonica, was ready and willing, and then and there tendered and offered to deliver the corn to defendants, and requested them to accept and pay for the same, yet the defendants did not, nor would at the said time, etc., accept or demand the corn, but neglected and refused so to do, by means whereof the defendants then and there became liable to pay plaintiff one thousand dollars. It is unnecessary to notice the fourth and fifth counts, as they were the common counts.

The contract, as above set out, was substantially proved on the trial before a jury, and the court, at the instance of the plaintiff, gave these instructions:

“The court instructs the jury that, when a contract is made, to be performed at a certain place, but at no definite time, the law implies that it is to be performed within a reasonable time.

That if the jury believe, from the evidence in this case, that the defendants contracted with the plaintiff for the purchase of corn, as in the plaintiff's declaration is alleged and set forth, that it then became, and was, the duty of the defendants, within a reasonable time after the making of such contract, to notify the plaintiff of the time they wanted the corn delivered; but if the defendants did not so notify the plaintiff within such reasonable time, that the said plaintiff, after such reasonable time had elapsed, had a right to demand of the defendants that they receive said corn and pay him therefor; and if the jury believe, from the evidence, that such contract was made on or about the middle of June, 1872, and that, by the terms...