Boyle Ice Co. v. California Ice Co. , 160 Ill. App. 130 ( 1911 )

Mr. Justice Baldwin

delivered the opinion of the court.

It must be conceded that the contract sued upon is awkwardly drawn, and is obscure. After mature consideration we have reached the conclusion that plaintiff’s proper remedy was by the suit for the damages which it has sustained by reason of the non-compliance of the defendant with the terms of the contract. Plaintiff undertook to sell, and defendant to buy 10,000 tons of ice, all of it to be delivered and accepted on or before December 1, 1907. The defendant failed to take the ice, and for its failure to keep its contract it is liable to the plaintiff.

By the terms of the contract, so much of the ice as was not thus taken on or before the 1st of December remained and was the property of the plaintiff, which it was at liberty to resell or not as it pleased, and we think the plaintiff could not recover the full contract price of the ice which it owned prior to and continued to own after the expiration of the time fixed in the contract. The contract did not constitute a sale of any particular ice. It required one party to sell and deliver, and the other to purchase and accept by a given date a certain quantity of ice, and as the defendant failed to keep this contract it is unquestionably liable to the plaintiff for such damages as resulted therefrom.

Under the contract, defendant was entitled to merchantable ice, and, therefore, it was entitled to show, if it conld, that the ice delivered to it, and that on hand by the plaintiff at the expiration of the contract was not of that character, thus to establish, if it could, a basis of an off-set, and, also, a reason for not taking the remainder. Plaintiff could only recover damages for the failure of defendant to take as much of the quantity contracted for as it had there, and which was of a merchantable character on December 1st, and the court erred in refusing to allow the defendant, if it could, to show that the plaintiff had on hand on December- 1st less ice, of merchantable quality, than it was suing for.

Defendant offered testimony tending to establish a partial or complete defense, and we think the court erred in excluding it, and instructing for the plaintiff.

Accordingly the judgment must be reversed and the cause remanded for another trial.

jReversed and remanded.