White Walnut Coal Co. v. Crescent Coal & Mining Co.

• Decision Date: 12 June 1912
• Citation: 254 Ill. 368,98 N.E. 669
• Court: Illinois Supreme Court
• Parties: WHITE WALNUT COAL CO. v. CRESCENT COAL & MINING CO.

254 Ill. 368

98 N.E. 669

WHITE WALNUT COAL CO.

v.CRESCENT COAL & MINING CO.

Supreme Court of Illinois.

April 18, 1912.

Rehearing Denied June 12, 1912.

Error to Branch Appellate Court First District, on Appeal from Circuit Court, Cook County; Richard S. Tuthill, Judge.

Action by the White Walnut Coal Company against the Crescent Coal & Mining Company. From a judgment of the Branch Appellate Court for the First District, affirming a judgment for plaintiff, defendant brings error. Affirmed.

Ullmann, Hoag & Davidson and Guerin, Gallagher & Barrett (Parker H. Hoag and M. F. Gallagher, of counsel), for plaintiff in error.

Tenney, Coffeen, Harding & Sherman, for defendant in error.

VICKERS, J.

The White Walnut Coal Company is a corporation engaged in mining and selling coal; its mines and place of business being located at Pinckneyville, Perry county, Ill. The Crescent Coal & Mining Company is a corporation engaged in buying and selling coal, located in Chicago, Cook county, Ill. On May 4, 1905, the following contract was entered into between said companies:

‘This contract, made by and between the Crescent Coal & Mining Company, of Chicago, Illinois, party of the first part, and the White Walnut Coal Company, of Pinckneyville, Illinois, party of the second part, witnesseth: The party of the second part hereby agrees to load at its Pinckneyville mines a minimum of five thousand (5,000) and maximum of seven thousand (7,000) tons per month, until April 1, 1906, of standard screenings, containing nut, pea and slack as per sample shipped for test, and deliver the same to the party of the first part, f. o. b. cars Illinois Central tracks at Chicago, for one dollar and thirty-two and one-half cents ($1.32 1/2) per ton of 2,000 pounds, with the understanding that if there is any reduction in the freight rate there will be a corresponding reduction in the price. The party of the first part hereby agrees to accept the coal as above stated and to pay for the same on the 20th of each month following shipments, mine weights to govern settlement. It is further agreed and understood that the second party will not be required to furnish the said coal in case of strikes, breakdowns or other causes beyond its control.

‘Signed in duplicate this 4th day of May, 1905.’

The White Walnut Coal Company brought an action of assumpsit against the Crescent Coal & Mining Company, in the circuit court of Cook county, to recover damages for an alleged violation of said contract, resulting from the refusal of the Crescent Coal & Mining Company to receive and pay for a portion of the screenings which the plaintiff was ready and willing to deliver under said contract. A jury trial resulted in a verdict, upon which judgment was afterwards rendered in favor of the plaintiff below, for $10,638.90. The judgment having been affirmed by the Branch Appellate Court for the First District, the record has been brought to this court for further review by writ of certiorari.

The facts, in brief, are that defendant in error shipped 27,700 tons of screenings to plaintiff in error between the making of said contract and October 27, 1905, 17,910 tons of which were accepted and 9,790 tons rejected, on the alleged ground that the screenings were not up to sample. On October 27, 1905, plaintiff in error wrote defendant in error as follows: ‘Since you are evidently not disposed to give us merchantable screenings, such as the sample cars upon which we made our contract, we have decided to and hereby notify you that we have rescinded your contract for failure to comply with same, and that we shall hold you for all damages sustained by us by reason of such default upon your part, and you may govern yourselves accordingly.’ On November 3d defendant in error replied to said letter as follows: ‘Yours of October 27 received. We must decline to accept your order rescinding our contract, and we most emphatically dispute your right to do so, for the reason that there is no occasion for the same by any act of ours. We have had the coal shipped to you carefully inspected, and we know that it is standard and the same as sample submitted. However, as you refuse to accept my screenings under this contract, it, of course, would be idle for us to go through the form of shipping the cars to you simply to have them rejected. We shall, accordingly, dispose of the coal at the best price we can get in the market, and whatever damage we may suffer by your refusal to accept it we shall expect you to pay to us.’ Thereafter defendant in error continued to produce screenings at its mines and sold the same in Chicago, St. Louis, and Minneapolis. Approximately $20,000 was credited to plaintiff in error's account as the net proceeds of these sales, although the screenings were sold much below the contract price. The defendant in error rendered monthly statements of the amount of shipments and receipts and advised plaintiff in error of the balance claimed to be due. The amount of the loss upon the screenings shipped and sold, after deducting freights and commissions, was adopted by the court below as the correct measure of the defendant in error's damages, and a verdict and judgment for that amount was rendered against plaintiff in error.

In the trial court, two questions were controverted:

[1] First, the making of the contract and the subsequent attemptof plaintiff in error to rescind the same were admitted, and it sought to justify the course pursued by alleging that the screenings shipped under the contract were not up to sample. This contention presented a question of fact, and the affirmance of the judgment by the Appellate Court settles that question adversely to the contention of plaintiff in error.

[2] Second, assuming that plaintiff in error is in default, a difference of opinion between the parties exists as to the proper measure of damages. Defendant in error contends that its measure of damages is the difference between the contract price and the net amount realized from a resale of the screenings, while plaintiff in error contends that the measure of damages is the difference between the contract price and the market price of such screenings in the city of Chicago. In other words, plaintiff in error contends that, since Chicago was the place of delivery under the contract, the right of the seller to resell the goods and hold the purchaser for the loss upon such resale is limited to the market designated as the place of delivery in the contract. On the other hand, the defendant in error contends that, when circumstances exist giving the seller a right to resell the goods, it is the duty of the seller to use reasonable care and diligence in reselling and to secure the largest net amount obtainable for the goods, and that the right to resell is not limited to the particular place designated in the contract as the place of delivery.

The court below adopted defendant in error's view of the law on this question, and embodied that view in the following instruction, given to the jury on behalf of defendant in error: ‘If you find from the evidence that the plaintiff sold the coal which it shipped under the contract, and which was not accepted by the defendant, to the best advantage under the circumstances, then the measure of plaintiff's damages is the difference between the contract price of the coal so shipped by plaintiff and the net amount realized by plaintiff from the sale of the same.’

The court modified instruction No. 28, asked on behalf of plaintiff in error, which in its original form was a statement of the rule as to the measure of damages as contended for by plaintiff in error. The assignment of error upon the giving of the instruction, above set out, on behalf of defendant in error and the modification of instruction No. 28 and the giving of the same as modified raises the only legal question that is open for consideration in this court.

[3] In its brief filed in this court, plaintiff in error objects to the instruction given on behalf of defendant in error, on the ground that it does not include the hypothesis that such resale must be fair, and must be made in good faith and in the mode best calculated to produce the real value of the goods, and omits the qualification that the charges for making the resale were reasonable and necessary, and also because, it is said, the instruction assumes the existence of a right in defendant in error to recover damages. An examination of plaintiff in error's brief filed in this cause in the Appellate Court, a certified copy of which, on motion of defendant in error, has been filed in this court, shows that none of the aforesaid objections were raised in the Appellate Court. Under numerous decisions of this court all questions not raised and argued in the Appellate Court are waived, and cannot be raised for the first time in this court. Dunn v. Crichfield, 214 Ill. 292, 73 N. E. 386;Chicago & Alton Railroad Co. v. American Strawboard Co., 190 Ill. 268, 60 N. E. 518;United Breweries Co. v. O'Donnell, 221 Ill. 334, 77 N. E. 547. The only objection urged against said...