W.H. Purcell Co. v. Sage

• Decision Date: 16 December 1902
• Citation: W.H. Purcell Co. v. Sage, 200 Ill. 342, 65 N.E. 723 (Ill. 1902)
• Parties: W. H. PURCELL CO. v. SAGE et al.
• Court: Illinois Supreme Court

200 Ill. 342

65 N.E. 723

W. H. PURCELL CO.

v.SAGE et al.

Supreme Court of Illinois.

Dec. 16, 1902.

Appeal from appellate court, First district.

Action by Donald A. Sage and others against the W. H. Purcell Company. From a judgment of the appellate court (90 Ill. App. 160) reversing a judgment for defendant, it appeals. Affirmed.Dupee, Judah, Willard & Wolf, for appellant.

P. H. Bishop (Charles C. Buell, of counsel), for appellees.

On October 24, 1901, the judgment theretofore entered in this case by the appellate court was reversed, and the cause was remanded to the appellate court, with directions to recite in its judgment the ultimate facts upon which it acted in rendering judgment against the appellant company. Thereafter, on June 11, 1902, the appellate court rendered another judgment, reversing, as before, the judgment of the circuit court, and making the following finding of facts, which was embodied in the judgment of June 11, 1902, to wit: ‘That on July 20, 1895, appellants were retail dealers in coal and appellee was engaged in the malting business.On that date appellants made to appellee the following proposition in writing, which was accepted by the appellee, to wit: ‘Chicago, July 20, 1895. The W. H. Purcell Co., No. 1107 Tacoma Bldg., City-Gentlemen: We offer you fifteen hundred (1,500) tons, more or less, of anthracite pea coal (screened), equal in quality to the pea coal recently tested by you at Kensington. This coal to be delivered when required in car lots between Sept. 1st, 1895, and Sept. 1st, 1896, on your malt house tracks at Kensington, Illinois. Price to be $2.75 delivered per net ton, 2,000 pounds. Payments to be made the 10th of the month following shipments. This proposition contingent upon strikes, accidents, delays of carriers, and other delays beyond our control. Railroad scales weights to govern settlements. Yours, truly, Sage & Co. Accepted: _____, for the W. H. Purcell Co.’ That the coal mentioned in said contract was for use by appellee in its said business. At different dates between September 1, 1895, and March 1, 1896, appellee ordered appellants to deliver to it coal under said contract aggregating 953 1/8 tons, of which amount 785 1/8 tons were delivered, the last delivery being 24 tons and 1500 pounds on March 4, 1896. Appellants on March 10, 1896, had failed to deliver 168 tons of said coal ordered by appellee, but furnished to appellee all the coal necessary for the proper conduct of its business from September 1, 1895, to March 17, 1896. That the acts of said parties and their correspondence contained in the record show that they construed said contract to require appellants to furnish to appellee coal thereunder as ordered by appellee, and which was necessary for the proper conduct of its business between September 1, 1895, and September 1, 1896. All said coal which was delivered during January, 1896, and prior thereto, was paid for by appellee according to the terms of the contract. The coal delivered by appellants to appellee in February and March, 1896, at the contract price, amounted to $505.05, less $42.22 transportation charges, which were advanced by appellee. Appellee on March 10, 1896, when requested by appellants to pay for the coal delivered in February, 1896, amounting to $436.99, refused payment therefor, and at the same time advised appellants it would not pay until more coal was delivered by appellants. That no coal was delivered to appellee by appellants after March 4, 1896, and on March 11, 1896, appellants gave notice to appellee they would deliver no more coal under the contract, and that they would and did thereby rescind said contract because of appellee's said refusal to pay for the coal delivered in February, 1896. That because of appellants' failure to deliver coal on said contract after March 4, 1896, appellee was obliged to and did buy in car lots 714 7/8 tons of coal of the kind mentioned in the contract, in the open market, from time to time, as its wants required, its last purchase being made July 30, 1896, and, on account of the higher market value of coal above the said contract price, was obliged to pay in excess of said contract price for said 714 7/8 tons of coal $1,228.02. And it is further considered by the court that said appellants recover of and from said appellee the sum of $604.09, and their costs by them expended in the circuit court of Cook county, and also in this behalf expended, to be taxed, and that they have execution therefor.' The present appeal is from the judgment so entered by the appellate court on June 11, 1902.

MAGRUDER, C. J. (after stating the facts).

This case has been before this court twice. The first decision is reported as Purcell Co. v. Sage, 189 Ill. 79,59 N. E. 451. There the judgment of the appellate court, which had reversed the judgment of the circuit court and entered a final judgment in favor of the present appellees, was reversed by this court, and the cause was remanded to the appellate court, with directions to that court to recite the ultimate facts upon which its judgment was based.

Thereafter the appellate court entered another judgment, reversing the judgment of the circuit court, and again entering a judgment in favor of the present appellees, Sage & Co., and recited in its judgment what purported to be a finding of facts. But the second judgment so entered by the appellate court was reversed by this court, and the cause was again remanded to the appellate court, because the finding of facts recited in its judgment was not a finding of the ultimate facts, required to be recited by section 87 of the practice act; and this court remanded the cause to the appellate court, with directions to recite in its judgment the ultimate facts upon which it acted in rendering judgment against the present appellant, the W. H. Purcell Company, as will appear by reference to the case of Purcell Co. v. Sage, 192 Ill. 197, 61 N. E. 486.

Thereafter the appellate court entered the judgment of June 11, 1902, which is set forth in the statement preceding this opinion. A fuller statement of the facts and of the pleadings will be found in the cases above referred to of Purcell Co. v. Sage, 189 Ill. 79, 59 N. E. 541, and Purcell Co. v. Sage, 192 Ill. 197, 61 N. E. 486. In its last judgment the appellate court has made a full finding of the facts as required by the statute, and its finding of facts so made is binding upon this court.

The party spoken of in the judgment of the appellate court as the ‘appellee’ is the present appellant, the W. H. Purcell Company, and the parties there spoken of as ‘appellants' are the present appellees, Donald A. Sage and William G....