McLean County Coal Co. v. City of Bloomington

Mr. Justice Carter delivered the opinion of the court: The stipulation of facts shows that from the date of the contract coal was delivered every month up to and including March, 190,6; that the amount delivered in February, 1906, was substantially a third again as much as was delivered in any other month and double the amount delivered during several of said previous months; that the amount delivered from March 1 to 24, 1906, inclusive, was nearly as great as any previous month, with the exception of February, and that there had been delivered under the contract, up to March 24, 1906, 6543 tons. In construing a written contract the court will endeavor to place itself in the position, of the contracting parties, so that it may understand the language used in the sense intended by the persons using it. (Field v. Leiter, 118 Ill. 17.) When the terms of a written agreement are in any respect uncertain or doubtful and the persons by their own conduct have placed a construction upon them which is reasonable, such construction will be adopted by the court, and therefore evidence of acts showing the practical construction of the instrument by the parties themselves is admissible. (Carroll v. Drury, 170 Ill. 571; Burgess v. Badger, 124 id. 288; People v. Murphy, 119 id. 159.) It is contended by appellant in this connection that it furnished appellee coal to April 30, 1905, under a contract similar to the one here in question. There is no evidence in the record upholding this contention, except that in the stipulation of facts there is an exhibit which apparently shows that 4878 tons of coal were delivered in 1904 and 1905 in practically average monthly installments, and we think it a fair inference, although the record does not show that fact clearly, that it was delivered by appellant to appellee. The terms of the contract under which such delivery was made were not offered in evidence, and we think that appellee’s contention must be upheld that the contract as to coal for the previous year cannot be considered in the present state of the record. The rule is elementary that in the construction of a contract it must be found from the contract itself, if that can be done, what the true intention of the parties was at the time they entered into it, and in doing this every part of the contract must be considered and given effect, if possible. No part will be rejected unless it is necessary so to do in order to prevent a defeat of the purposes sought by the parties to the contract. (Mittel v. Karl, 133 Ill. 65; Riggin v. Love, 72 id. 553; City of Alton v. Illinois Transportation Co. 12 id. 38; Bishop on Contracts,—1887 ed.—sec. 384.) In construing a written instrument the great object is to arrive at the intention of the parties. (Peoria and Pekin Union Railway Co. v. Tamplin, 156 Ill. 285.) The entire instrument, whether on one piece of paper or on several, and all writings on the same subject, when referred to and made a part of said contract, should be considered in interpreting each particular part. (Bishop on Contracts,—1887 ed.-—sec. 382; Sexton v. City of Chicago, 107 Ill. 323.) The request or advertisement for" bids, as well as the bid itself, is specifically made a part of the contract now under consideration. The request for bids asked for coal to be delivered “as needed,” and again, “as fast as is required.” The bid offers to deliver “at such times and in such quantities as you may direct.” The body of the contract itself states in one place that the coal “shall be delivered promptly as ordered,” and in another, that upon failure “to make deliveries as ordered,” etc. It further provides that said second party, during any time of strike at its mine, “shall not be required to deliver coal as herein specifiedand again, that the second party, so long as the mine is in operation during the continuance of the contract, shall “furnish the coal herein required of it.” It is necessary, in order to find the true intent of this contract, to give some meaning to all of these various words and phrases just quoted. Propositions of law fairly raising'the questions urged by counsel for appellant as to the proper construction of the contract were presented and refused by the trial court. Appellee contends that the construction to be placed upon this contract is, in effect, that the city could order all the coal it would need for its use during the life of the contract at any time it desired, and that appellant would be compelled to deliver it if such coal was on hand at the time so ordered. If this contention be upheld, then appellee, during the .first month after the contract was entered into, could have ordered all the coal that in the judgment of its officials it would need up to July i, 1906, and appellee would have been compelled to deliver such coal if it had it in stock. Manifestly, this was not the intention of the parties when they entered into the contract. Such a construction would render nugatory the provision made to cover the possibility of the said second party being unable to operate its mine through unavoidable accidents or strikes. Obviously, from the very wording of the contract the parties understood that the coal would be delivered and paid for on monthly itemized bills. If the coal was to be delivered at once, it certainly cannot be'contended that the payments would have to be divided into monthly payments. Moreover, such a construction would leave the words “as needed” and “as fast as is required,” which appear in the request for bids, absolutely without any meaning, or give them the identical meaning that appellee now contends should be placed upon the word “ordered.” The words “order” and “direct” are sometimes used as synonymous with the word “require,” (United States v. Dimmick, 112 Fed. Rep. 350,) and the word “require” is frequently used as being substantially equivalent to “need.” (Minnesota Lumber Co. v. Coal Co. 160 Ill. 85; Purcell Co. v. Sage, 200 id. 342; 24 Am. & Eng. Ency. of Law,—2d ed.—601, and cases cited.) It is a familiar rule that words should usually be given their ordinary meaning, but it is also well settled that the connection in which they are used must be considered in order to determine their meaning in any given contract. Manifestly, if this contract be given a reasonable construction, the appellant was to deliver the coal when ordered, at such times, quantities and places as the city required and needed it and directed that it should be delivered. The provision that it was the “sense of this contract that so long as the said second party has coal of the kind and quality described herein for sale * * * said second party shall furnish the coal herein required of it,” is relied upon by appellee, because the record shows that at the time the coal was ordered in the last week of March, 1906, appellant had coal of the kind and quality on hand. We think the provision just quoted, fairly construed, means that even though appellant was prevented from operating the mine by unavoidable accident or by strike, still, if it had any coal on hand of the kind and quality specified, it would be compelled to deliver this coal notwithstanding the mine was shut down, to supply the then present needs and requirements of the appellee. Greater regard must be had to the clear intent of the contract than any particular words used therein. (Torrence v. Shedd, 156 Ill. 194.) The intention of the parties in making this contract plainly authorized appellee to order coal as required or needed by its various departments, but it would not be a reasonable construction to say that, in anticipation of a strike, during the first month of the contract it could order at once all the coal which it had the right to order during the whole .life of the contract, While a certain amount of discretion, under this contract, rested with appellee as to the amount it might order at any given time, this discretion must be reasonably exercised. What constitutes such reasonable discretion? .Taking into consideration the words “ordered,” “directed,” “required” and “needed,” as used in their various connections in the request, bid and contract, we think it would not be an unreasonable construction to say that the discretion rested with appellee to order coal at least a month in advance. Would it be a reasonable discretion for it to order six months in advance? And if not for six months, could it for three months ? It is' apparent from this record that the appellee, in anticipation of a strike, ordered coal during the months of February and March, 1906, in excess of its then present requirements. The appellant did not refuse to deliver coal as ordered until after March 24, 1906. At that date it had already delivered to appellee sufficient for its uses for over two months beyond the date of such refusal. Construing the contract in its entirety and in the most favorable light for appellee, and taking into consideration the previous deliveries of coal from month to month and payments therefor under monthly itemized bills, we do not think that, fairly construed, it would justify appellee in ordering coal for more than two months in advance of its then present needs and requirements. The amount claimed as a set-off by appellee should not have been allowed. The circuit court, on the record before us, should have entered judgment in favor of appellant for $1060.33. The judgments of the circuit and. Appellate Courts will therefore be reversed and the cause remanded to the circuit court for further proceedings in harmony with the views herein expressed. Reversed and remanded.