Sage v. W. H. Purcell Co.

Mr. Justice Windes delivered the opinion of the court. The question presented is as to whether appellants were in default under the contract on March 10, 1896, when they demanded payment of the coal delivered in February preceding. If they were not in default and had not violated their contract on or prior to that day, then they were justified in declaring the contract rescinded, as they did, on March 11, 1896, for appellee’s failure and refusal on the day previous to pay for the coal shipped and delivered in February, and are entitled to recover at the contract price for all coal they had delivered to appellee prior to that day, with interest. If appellee violated its contract in refusing to pay on March 10, 1896, then it can not recover -for any alleged damages claimed to have been incurred by reason of appellants’ failure to deliver coal after it refused to pay. Minnesota L. Co. v. Whitebreast Coal Co., 160 Ill. 85; Harber Bros. Co. v. Moffat C. Co., 151 Ill. 84. The fact that appellants did not deliver one car a week, as ordered by appellee, and as they had promised to do in November, 1895, is not of importance in determining whether appellants were in default upon March 10,1896, on their contract or not. By the contract it was their duty to deliver coal to appellee “ when required in car lots between September 1, 1895, and September 1, 1896.” This plainly means when required or needed by appellee in its business between those dates. Minnesota L. Co. case, supra. But if it be necessary to look to the acts of the parties to determine what was the meaning of the contract in this respect, we think it is clearly apparent from the agreed statement of facts that it was the intention of the parties that the coal should be furnished as appellee should need it in its business. This, we think, was done. All that was necessary to the proper conduct of appellee’s business was that it should have on hand a ten days’ supply of coal, The last coal delivered by appellants was on March 4, 1896, and appellee used the coal furnished by appellants from that time up to on or about March 17th, so that instead of appellee not having the coal furnished by appellants necessary for its business, it had on hand a thirteen days’ supply. Appellants, then, not being in default under the contract, they are entitled to recover for the coal delivered prior to March 10, 1896, and appellee being in default for failure to pay for the coal delivered in February, 1896, is not entitled to any damages by way of recoupment or set-off. In fact the record fails to show that on March 11, 1896, when appellants elected to rescind the contract, any damages whatever had been suffered by appellee, and that up to that date it was insisting on appellants’ continuing to deliver coal pursuant to the contract. We think the case of Harber Bros., supra, and the cases therein cited, are conclusive upon the question presented. It follows, therefore, that the learned trial judge erred in finding the issues for the defendant, and that the error, if there was error, in sustaining the demurrer to the amended plea of set-off, was. harmless, because, under the agreed statement of facts, the appellee is not entitled to recover anything by way of set-off. The judgment is therefore reversed, and judgment will be entered in this court for the amount of coal delivered by appellants to appellee and not paid for, being $505.05, less $44.22 advanced by appellee for transportation charges, with interest at five per cent per annum from March 10, 1896, making in all $560.03, together with their costs in the Circuit Court and in this court.