BERRYMAN TRANSFER AND STORAGE CO., INC. v. New Prime, Inc.

JUSTICE STEIGMANN

delivered the opinion of the court:

In September 1996, plaintiff, Berryman Transfer and Storage Company, Inc. (Berryman), sued defendant, New Prime, Inc., d/b/a Prime, Inc. (Prime), seeking to enforce ari August 1995 contract between the parties. In June 2001, Berryman filed its second-amended complaint.

In October 2002, following a bench trial, the trial court entered judgment in Prime’s favor.

Berryman appeals, arguing that the trial court erred by finding that paragraph eight of the parties’ contract was ambiguous and entering judgment in Prime’s favor. We reverse and remand for the trial court to enter judgment in Berryman’s favor and assess damages.

I. BACKGROUND

Because the parties are familiar with the evidence presented at the September 30 through October 1, 2002, bench trial, we review it only to the extent necessary to put the parties’ arguments in context.

Berryman and Prime were both companies in the business of transporting goods via truck and brokering the transportation of goods. When Berryman acted as a broker, a customer (the shipper) paid Berryman to transport its goods. Berryman, in turn, found a contract carrier to transport those goods. Berryman made money when it found a contract carrier to transport the goods for an amount less than it had been paid by its customer. Berryman commonly referred to its customers as its “accounts.”

In 1995, one of Berryman’s accounts was Nichols Aluminum, Inc. (Nichols), located in Lincolnshire, Illinois. In August 1995, Berryman entered into a contract with Prime, pursuant to which Prime agreed to work as a contract carrier for Berryman. Paragraph eight of the parties’ contract provided as follows:

“Carrier understands and agrees that [blroker has put forth substantial effort and investment in order to develop its accounts and it will at no time during the term of this [algreement, and for a period of one (1) year after the effective date of termination of this [algreement, either directly or indirectly, attempt to solicit, divert, by-pass, back-solicit[,] or perform any services for compensation for any account of [blroker which [blroker has secured and has previously tendered to [c]arrier for transportation, unless [blroker has given prior written authorization. In the event that [c]arrier violates the terms of this section, [clarrier shall be hable to [blroker for the normal and customary commission which [blroker would have received for each individual movement, and [clarrier shall deliver said amount to [blroker within thirty (30) days after billing of the shipper.”

Pursuant to the contract, Berryman tendered to Prime four shipments of Nichols’s goods, from Nichols’s Lincolnshire facility to a California destination. In early February 1996, Berryman agents were at Nichols’s Lincolnshire facility when they noticed that Prime was independently shipping for Nichols. Berryman then pursued its right to commissions under paragraph eight of its contract with Prime, resulting in this lawsuit.

At the bench trial, Michelle Wagner, Nichols’s materials manager, testified that Berryman had been a carrier for Nichols since around 1990. In 1995, Berryman was handling about 25% to 30% of Nichols’s shipping from the Lincolnshire facility.

Wagner further testified that Nichols first hired Prime as one of its carriers in January 1996. She acknowledged that prior to that time, Nichols had paid Prime for shipping jobs as a “third[-]party payer.” Wagner explained that some of Nichols’s product was shipped to a Kentucky company, Worldsource, to be painted. Worldsource was then responsible for arranging the shipping of the painted product to Nichols’s customers, even though Nichols covered the cost of that shipping. Worldsource had hired Prime to do some of its shipping of Nichols’s product. As a result, between October 1994 and July 1995, Nichols paid Prime a total of $53,221.34 for shipping its goods from Worldsource to Nichols’s customers.

Prime argued at trial that paragraph eight of the contract did not require Prime to pay Berryman a commission for shipping jobs Prime did for Nichols because Nichols was a preexisting account of Prime.

At the conclusion of the trial, the trial court ruled in Prime’s favor, upon finding that Nichols was an account of Prime when Prime moved Nichols’s product from Worldsource to Nichols’s customers prior to Berryman and Prime entering into the August 1995 contract. The court further stated, in pertinent part, as follows:

“[T]he evidence in this case suggests and supports a finding by the [c]ourt that Prime was doing business with [Nichols] for some months prior to the time that the contract binding the parties here was entered into. *** It seems to me that the document is ambiguous, at least to the extent that issues arise as to what happens if the carrier under [p]aragraph [eight] has previously done business with the, what’s the phrase that’s used in here, the account. I would have absolutely no problem awarding damages to [Berry-man] if [Prime] had not billed and done business with [Nichols] prior to that — prior to the date of the contract.”

This appeal followed.

II. ANALYSIS

Berryman argues that the trial court erred by determining that paragraph eight of the contract was ambiguous. We agree.

The determination of whether a contract is ambiguous is a question of law; we thus review that determination de novo. Shields Pork Plus, Inc. v. Swiss Valley Ag Service, 329 Ill. App. 3d 305, 311, 767 N.E.2d 945, 949 (2002). A contract is ambiguous when its language is “ ‘susceptible to more than one meaning [citation] or is obscure in meaning through indefiniteness of expression.’ ” Shields Pork Plus, 329 Ill. App. 3d at 310, 767 N.E.2d at 949, quoting Wald v. Chicago Shippers Ass’n, 175 Ill. App. 3d 607, 617, 529 N.E.2d 1138, 1145 (1988).

The trial court found paragraph eight to be ambiguous because it did not address whether it applied when, as in this case, the contract carrier had previously done business with the broker’s account. We disagree with the court’s determination that the absence of an exception for preexisting business relationships constitutes an ambiguity in the contract terms. Pursuant to paragraph eight of the contract, Prime agreed not to perform any service for compensation during the term of the contract (and for a period of one year thereafter) for any account that Berryman had tendered to Prime, without paying Berryman the customary commission. Paragraph eight provides one exception— namely, when Berryman provides “prior written authorization.” Paragraph eight does not provide an exception for Berryman accounts for whom Prime had previously worked. In ruling as it did, the court, in essence, added that exception to paragraph eight and thus provided Prime with a better bargain than Prime had negotiated for itself.

Illinois recognizes a strong presumption against provisions that easily could have been included in a contract but were not. Miner v. Fashion Enterprises, Inc., 342 Ill. App. 3d 405, 417, 794 N.E.2d 902, 914 (2003). Further, “the rights of parties to a contract are limited by the terms expressed in the contract and courts may not rewrite language or add provisions to make the agreement more equitable.” Jewelers Mutual Insurance Co. v. Firstar Bank Illinois, 341 Ill. App. 3d 14, 26, 792 N.E.2d 1, 11 (2003) (McBride, PJ., specially concurring in part and dissenting in part); Shields Pork Plus, 329 Ill. App. 3d at 312, 767 N.E.2d at 950 (recognizing that courts will not add terms to a contract about which the contract is silent); Frederick v. Professional Truck Driver Training School, Inc., 328 Ill. App. 3d 472, 481, 765 N.E.2d 1143, 1152 (2002) (quoting Owens v. McDermott, Will & Emery, 316 Ill. App. 3d 340, 349, 736 N.E.2d 145, 154 (2000), for the “well-established” rule that “ ‘where the terms of a contract are clear and unambiguous, they must be enforced as written, and no court can rewrite a contract to provide a better bargain to suit one of the parties’ ”). Accordingly, we conclude that the trial court erred by determining that the contract was ambiguous because it failed to provide an exception for Prime’s preexisting business relationships and entering judgment in Prime’s favor.

III. CONCLUSION

For the reasons stated, we reverse and remand for the trial court to enter judgment in Berryman’s favor and assess damages.

Reversed and remanded.

APPLETON, J., concurs.