John A. Roebling's Sons' Co. v. Lock Stitch Fence Co. , 130 Ill. 660 ( 1889 )

Mr. Justice Magruder

delivered the opinion of the Court:

The court below instructed the jury on behalf of the defendant as follows: “The court further instructs the jury, that, if they believe from the evidence, the plaintiff and defendant made the contract for wire mentioned in the declaration, that the plaintiff entered upon the performance of the contract and shipped to the defendant a part of the wire mentioned in the contract, that defendant received and accepted such part, and then notified the plaintiff not 'to ship any more of the wire, then such notice excused the plaintiff from any further performance of the contract, and the plaintiff had no right tn proceed further in the performance of the contract, unless such notice should he withdrawn by the defendant,” etc.

/ This instruction is manifestly erroneous. Where one party to a contract gives notice before the time of performance arrives that he does not intend to perform, the other party may treat such notice as a breach and bring his action, or he may decline to accept such notice as a breach, and may insist that the contract shall continue in force up to the time fixed for its final performance, holding the party refusing to perform .responsible for the consequences of such refusal. One party to a contract cannot, by simply refusing to carry out his part ^of it, compel the other party to rescind it. The latter has a right to keep it alive notwithstanding such refusal. This doctrine was clearly announced in Kadish et al. v. Young et al. 108 Ill. 170.

In the present case, a contract was made, between appellant and appellee, by the terms of which the former agreed to sell to the latter 500 tons of fence wire and to deliver the wire so sold between March 7, 1885, and July 1, 1885. When the contract was made, appellant was engaged in shipping wire to appellee, under a former order not yet filled, at the rate of about 20 tons per week. Delivery under the new contract at the same rate was to begin after the completion of the old order. The last wire under the old order was not shipped nnt.il March 18, 1885, and deliveries under the new order did not become obligatory upon appellant until a week after that date, to-wit: on March 25, 1885.-

When the telegrams, of April 27, directing that shipments be stopped, and of April 29 announcing that the wire would not be taken if shipped, were received at Trenton, appellant might have treated such telegrams as a breach of the contract, and might have proceeded at once to sue for damages on account of such breach. But appellant also had the right to consider the notice, contained in the telegrams, as inoperative, and to treat the contract as alive and subsisting. Appellant was at liberty to await the time when the contract was to be executed, and to hold appellee responsible for the non-per-formanpe of it. Hence the instruction, which announced that “the plaintiff had no right to proceed further in the performance of the contract,” etc., was calculated to mislead the jury.

The appellant distinctly refused to stop the shipments of the wire. It thereby elected to continue the agreement in force. It kept the contract alive not only for its own benefit, but also for that of the appellee. It remained liable to all its own obligations and liabilities under the contract. (Kadish et al. v. Young et al. supra.) It was bound ‘to show, upon the trial, that it was ready, willing and able to perform its part of the contract. For this purpose it introduced testimony tending to prove, that it shipped all the wire, called for by the agreement, to Joliet within the period required for delivery, and there tendered ■ it to the appellee. It is unnecessary to discuss the question, whether such shipments and tenders on the part of the appellant were actually required of it in order to show its readiness and ability to perform- its part of the contract, in view of the positive and repeated announcement of the appellee that no more wire would be received after April 27, 1885. Whether or not the appellant was ready, willing and able to perform the agreement, after the notice of April 27 and up to July 1, was a question of fact to be determined by the jury from all the circumstances in the case, including such shipments and tenders.

Counsel for appellee call attention to two facts, which they claim to be undisputed, as showing that appellant failed to establish its willingness and ability to perform the contract. One is, that appellant shipped no cars between April 21 and May 16, so that none were ready for delivery at Joliet between April 27 and May 24.

The jury had a right to consider the omission of shipments-between the dates named in connection with all the circumstances tendingio explain such omission. It would have been impossible to ship and deliver 600 tons between March 25 and July 1—a period of about 14 weeks—if only 20 tons could be shipped each week. Three shipments of 20 tons each were made on April 15,18 and 21 respectively. These 60 tons, all shipped within one week, were accepted by appellee. No objection was made that more than 20 tons were shipped during one week. The only objection ever made by appellee was as to the quality of the wire. The reason given for refusing to receive shipments after April 27, was that the wire was brittle and broke easily, and was of a poor quality.

Again, during the period between April 30 and May 16, it was arranged that appellant’s manager-should go to Joliet, and examine the wire, and make report as to its quality. It was while this examination was going on for the purpose of determining the justice of appellee’s complaints about the wire, that the shipments stopped for a short time. ■ It was for the jury to say whether, under all the circumstances, the failure to ship between April 21 and May^l6 showed a want of readiness and ability to perform, or whether appellee waived its right to object to such failure, or impliedly consented to the temporary cessation of shipments in order to settle the question as to the quality of the wire.

The second fact relied on to show a want of readiness and ability to perform, is the alleged non-payment of freight on four carloads of wire when they were tendered to appellee. Appellants made shipments on May 16, 22, 26 and 28, each amounting to 20 tons. The bills of lading were sent to appel-lee, and returned to appellant with written statements endorsed thereon, that the wire would not be received. Afterwards on June 10 the amounts of these shipments were tendered to appellee, but the freight on them due to the railroad company was not paid until June 26. There was evidence tending to ;show, that appellee made no objection because the freight was not paid; that appellant had an arrangement with the R. R. Co. in relation to the payment of the freight, and that, in prior deliveries of wire, appellee had been in the habit of .advancing the freight and receiving credit therefor in subsequent settlements for the amounts due on the purchases of the wire. It was for the jury to take all these circumstances into consideration in determining whether the fact, that freight was due on 60 out of the 380 tons tendered after April 27, ■showed a want of readiness and ability to perform.

Inasmuch as the court instructed the jury, that the plaintiff had no right to proceed further in the performance of the •contract after the notice of April 27, the question as to what amounted to a performance or a non-performance was taken from their consideration. It would be entirely immaterial whether the omission to ship wire between April 21 and May 16, and the omission to pay freight on four carloads of wire before they were tendered, did or did not, in the light of all the attending circumstances, amount to a want of readiness .and ability to perform, if the plaintiff had no right to perform .at all.

The trial court also gave the jury the following instruction for the defendant: “The jury are further instructed that they shall disregard all evidence presented, proving or tending to prove any re-sale of the wire claimed to have been ready for •delivery under the contract sued on in this case, all such evidence having been ruled out and excluded by the court.” We think this instruction is erroneous, and that the evidence therein referred to should not have been excluded.

Where a vendee of goods, sold at a specific price, refuses to -take and pay for the goods, the vendor can resell the goods, •.and charge the vendee with the difference between the contract price and that realized, at the sale. The .sale must be fair, and must be made in good faith, and in the mode best calculated to produce the real value of the goods. (Saladin v. Mitchell, 45 Ill. 79; Ullmann v. Kent, 60 id. 271; Bagley v. Findlay, 82 id. 524.)

In the present case the sale was made at public auction at Joliet, the place of delivery, and after notice given to appellee. TJie proof tends to show, that the sale was fairly made with reasonable diligence, judgment'and care. The proof also tends to show, that the price realized at the sale was the fair market value of the wire at the time and place of delivery.

The judgments of the Appellate and Circuit Courts are reversed, and the cause is remanded to the Circuit Court.

Judgment reversed.