Vierling v. Iroquois Furnace Co.

• Decision Date: 08 November 1897
• Citation: Vierling v. Iroquois Furnace Co., 170 Ill. 189, 48 N.E. 1069 (Ill. 1897)
• Parties: VIERLING et al. v. IROQUOIS FURNACE CO.
• Court: Illinois Supreme Court

170 Ill. 189

48 N.E. 1069

VIERLING et al.

v.IROQUOIS FURNACE CO.¹

Supreme Court of Illinois.

Nov. 8, 1897.

Appeal from appellate court, First district.

Action by the Iroquois Furnace Company against Vierling, McDowell & Co. From a judgment of the appellate court (68 Ill. App. 643) affirming a judgment for plaintiff, defendant appeals. Affirmed.

Maher & Gilbert, for appellant.

McMurdy & Job, for appellee.

WILKINS, J.

Appellee brought an action of assumpsit against appellant in the circuit court of Cook county, for refusing to receive and pay for certain pig iron, according to the terms of three alleged contracts of sale. A trial by jury resulted in a verdict for the plaintiff for $3,484, on which the court allowed interest from the date of the verdict, and gave judgment for $3,505.76. From a judgment of affirmance in the appellate court, this appeal is prosecuted.

Plaintiff below claimed that it sold and agreed to deliver to the defendant 1,500 tons of iron, at an agreed price, and had offered to deliver it in conformity with its agreements; but defendant wrongfully and without lawful excuse refused to receive 687 tons thereof, or to pay therefor, to the damage of plaintiff, the difference between the contract and market price of the iron. The defendant denied that it agreed to purchase the alleged number of tons, or that the plaintiff delivered or offered to deliver to it iron of the quality contracted for. The jury found both these controverted facts in favor of the plaintiff, and by the judgment of affirmance in the appellate court they are conclusively settled adversely to appellant.

On the assignment of errors of law it is first contended that the circuit court erred in refusing to instruct the jury that a paper offered in evidence by the plaintiff, dated January, 1892, called the ‘Contract for Omaha Iron,’ was not accepted by the defendant, and that the plaintiff could not recover any damages whatever for a refusal to take iron on that contract. Whether or not the contract named in the instruction was accepted by the defendant was a question of fact, and the court could not properly take it from the jury by an instruction like the one asked. Under our statute, trial courts can only instruct the jury on matters of law, leaving it to find the facts. The contention that the instruction should have been given on the theory that the testimony offered to prove acceptance of the contract was incompetent is without force. The competency of such testimony could not be raised by a general instruction of this character.

Neither do we think the court erred in admitting the evidence objected to. It consisted of the following letter: ‘December 23, 1891. Iroquois Furnace Co.-Gentlemen: Noting yours of November 23d, one car soft iron duly received with proper trial, as agreed upon. In accordance with agreement, we can use and will require both irons. Kindly send proper sales memorandum, as we have mislaid the original. Both irons tried we have found satisfactory. Vierling, McDowell & Co.’ It is said the witness Foster was permitted, over the objection of counsel for defendant, to testify that this letter was an acceptance of the Omaha contract. We do not so understand his testimony. The letter was before the jury, and the question as to whether it was in fact an acceptance was for it, under proper instructions.

It is again insisted that the court erred in giving instruction No. 2, on behalf of the plaintiff. It seems to be thought that the instruction violates the well-known rule that the interpretation and construction of written contracts is for the...