Houston v. Wendnagel

Mr. Presiding Justice Freeman delivered the opinion of the court. It is conceded in behalf of appellants that they defaulted in their contract, but contended that the breach occurred in January, 1903, when the lumber was to be cut and piled on sticks to allow it to dry. The lumber was,' however, by the terms of the original agreement to be delivered in August of that year. From the correspondence it appears that appellees would have been willing to accept it if delivered in November following. But it was never delivered and there can be no sufficient reason for claiming the breach of the contract occurred before the expiration of the time at which the lumber was to have been delivered. It is insisted that if the breach occurred in August 1903, then the market price of the lumber at that time is the basis upon which to determine whether appellees, have suffered loss or damage from the breach. It is contended that the trial court erred in permitting the introduction of evidence of market conditions at a later date. Appellees’ attorneys, however, call attention to a part of appellants’ letter of August 26, 1903, before quoted, in which the latter assure appellees that their order will be completed, but that it will take more time, and suggest they would like to have appellees “look out for material required for'immediate and future use from some other source.” It is true doubtless that if appellees accepted this proposition and bought material elsewhere or extended the time to appellants by agreement between the parties, ‘ ‘ the measure of damage is the difference between the contract price and the market price at the time the article is deliverable by the subsequent agreement; and where the time of delivery is postponed indefinitely the measure of damages is the difference between the contract price and the market value at a reasonable time after demanding performance.” Summers v. Hibbard, Spencer, Bartlett & Co., 153 Ill. 102-111. In their letter of August 22, 1903, appellees wrote they would expect appellants to ship the lumber on the order “next November,” an extension of three months. In that same letter appellees wrote they were “very much in need of this material now and on account of this disappointment buy here and there. We are able to get the material and should think you would be. However, if you fill the order on or about the time we mention above, it will be satisfactory.” The time of delivery was thus postponed by agreement apparently until November, 1903. As to the buying elsewhere appellants responded August 24, “We should be perfectly willing that you buy a reasonable amount of oak referred to, provided you can do so at not to exceed the price you pay us. Ton will no doubt have opportunities offered.” The breach of the contract under the postponed agreement as to delivery occurred therefore in November, 1903. The measure of damage is the difference between the contract price and the market price at that time. Appellees had then the right also to go into the market and purchase the lumber at its market value at that time, and if they did so would then be entitled to recover the difference in price they were compelled to pay. The result in either case would be the same. See Sleuter v. Wallbaum, 45 Ill. 45; Van Arsdale v. Rundel, 82 Ill. 63. Over appellants ’ objection appellees were permitted to introduce bills of lumber purchased at different times, some of it so late as November, 1904, a full year after the breach occurred. In Sleuter v. Wallbaum, supra, it was said by our Supreme Court that “the only safe rule is to confine the measure of damages to the market price at the time of the breach.” It was, we think, error to admit in evidence the bills for lumber purchased at later dates. The judgment of the Superior Court will therefore be reversed and the cause remanded. Reversed and remanded.