McClure v. Spellman , 50 Ill. App. 50 ( 1893 )

Opinion of the Court,

Gary, P. J.

The appellants sued the appellee in assumpsit for a breach of the following agreement:

“July 8, 1887.

“ Know all men by these presents: This memorandum of an agreement entered into this day between T. L. Spell-man, of Danville, Vermilion county, Illinois, party of the first part, and F. H. McClure & Co., of Chicago, Cook county, Illinois, party of the second part, witnesseth:

The said party of the first part agrees to sell to the said party of the second part, the lump coal mined at the mines of the said party of the first part, located at Grape Creek, Vermilion county, Illinois, at the rate of one dollar and ten cents ($1.10) per ton, f. o. b. coal cars at Grape Creek, Illinois, till April 1, 1888. The said lump coal to be well cleaned and screened, and in every way kept up to the standard of the coal mined by the said party of the first part.

And the said party of the first part furthermore agrees to sell to the said party of the second part, the mixed coal run through an (1¿) inch and an eighth screen at the rate of twenty-two and one-half (22J) cents per ton, f. o. b. cars at Grape Creek till April 1, 1888.

The said party of the first part agrees to give the said party of the second part the exclusive control of his coal in Chicago, and the country tributary to Chicago, till April 1, 1888, it being expressly understood that this agreement is not to interfere with any existing contract that the said party of the first part may now have.

The said party of the first part hereby agrees not to make any future contracts that would interfere with the rights of the said party of the second part, and it is agreed that all sales made by the said party of the first part, and the said party of the second part, are subject to mutual agreement.

The said party of the second part agrees to use their best efforts toward the disposal of the output of the mines of the party of the first part, and- not handle any other Illinois coal where the coal of the said party of the first part can be sold, until the limit of the production of the mines of the said party of the first part shall have been reached.

In case of a strike among the men, unless caused by an arbitrary reduction of wages, or other action by said party of the first part, not consistent with the carrying out of this contract in good faith, this contract will be considered null and void during the continuance of the strike.

Payments to be made on the fifteenth of the month for all coal delivered during previous month.

T. L. Spellman,

F. H. JVÍoGlube & Co.”

When the contract was offered in evidence, the court sustained an objection to it, and instructed the jury to find for the defendant, appellee here.

This action of the court was based upon the assumption that the law, first laid down in this State in Schneider v. Turner, 27 Ill. App. 220, and followed in many cases since, (Locke v. Towler, 41 Ill. App. 66,) governed this case.

That was a mistake. The appellee was bound by his contract to deliver to the appellants all the coal of his mines, not required to fill previous contracts, that the appellants might be able to dispose of, and the appellants were also bound to use their best efforts to dispose of the whole of it, not required to fill previous contracts.

ISTothing of privilege was left to either party.

A contingency, not left to the volition of the purchaser, as to the quantity to be taken, does not prevent the contract being valid as to the quantity that the happening of the contingency may require.

If the appellee had sued the appellants for not taking coal, it would have been no answer that they did not want it, unless they coup Led with that their inability to dispose of it by using their best efforts. Their best efforts would then be in issue; and whether gain or loss would be the result, was a risk the appellants had taken upon themselves, as effectually as if they had contracted absolutely for the whole output at a fixed price.

The judgment is reversed and the cause remanded.