Kieper v. American Coal & Supply Co.

Mr. Justice Gridley delivered the opinion of the court. It is contended by defendant’s counsel that the acceptance by plaintiff of defendant’s check of May 13, 1912, for $158.08, satisfied plaintiff’s entire demand, and, hence, the judgment cannot be sustained. Counsel cites the cases of Canton Union Coal Co. v. Parlin & Orendorff Co., 215 Ill. 244, and Snow v. Griesheimer, 220 Ill. 106. Under the facts as disclosed by the evidence, and even considering the statement (not admitted by the court) which was inclosed with the check we cannot say that the check in question was offered under such circumstances as to amount to a condition that, if accepted by plaintiff, it was to be received in full payment of plaintiff’s claim or demand, or that the acceptance of said check by plaintiff should be given the effect contended for. The facts of the present case are different in essential particulars from the facts in the cases cited. It is also urged that, under the theory of recovery adopted by plaintiff and in view of the testimony of the plaintiff, the court erred in giving to the jury the following instruction: “The jury are instructed if they believe from the evidence that the plaintiff and defendant entered into a contract for the purchase and sale of 500 cords of Afoot, good, sound maple and birch wood, at the agreed price of $3.25 per cord, and if the jury further believe from the evidence that plaintiff delivered to the defendant 204 cords of wood of the kind and quality specified in the contract, and received for said wood the sum of $553.08, from the defendant, and if the jury further believe from the evidence that the plaintiff was able, ready and willing to deliver to said defendant the balance of said wood under said contract, amounting to 296 cords, but that the defendant directed and requested the plaintiff not to deliver or ship said 296 cords, then the jury are instructed that the plaintiff is entitled to recover from the defendant the value of said 204 cords, less whatever sum or sums are shown by the evidence to have been paid by the defendant to the plaintiff, and the further sum of $3.25 per cord for the remaining 296 cords, less whatever sum or sums it would have cost the plaintiff to deliver said 296 cords to the railroad track as shown by the evidence, but not more than the sum of one thousand ($1,000.00) dollars. Provided you further believe that no compromise proposition was made and accepted. ’ ’ In Bagley v. Findlay, 82 Ill. 524, 525, it is said (italics ours): “When a vendee of goods, sold at a specific price, refuses to take and pay for the goods, the vendor may store the goods for the vendee, give him notice that he has done so, and then recover the full contract price, or he may keep the goods and recover the excess of the contract price over and above the market price of the goods at the time and place of delivery, * * * or the vendor may, giving notice to the vendee, proceed to sell the goods, in their then condition and quantity, to the best advantage, and recover of the vendee the loss, if the goods fail to bring the amount of the contract price.” In Lake Shore & M. S. Ry. Co. v. Richards, 152 Ill. 59, 80, it is said (italics onrs): “It is well settled that where one party repudiates the contract and refuses longer to he hound by' it, the injured party has an election to pursue either of three remedies: He may treat the contract as rescinded, and recover upon quantum meruit so far as he has performed; or he may keep the contract alive for the benefit of both parties, being at all times himself ready and able to perform, and at the end of the time specified in the contract for performance, sue and recover, under the contract; or he may treat the repudiation as putting an end to the contract for all purposes of performance, and sue for the profits he would have realized if he had not been prevented from performing. In the latter case the contract would be continued in force for that purpose.” In Osgood v. Skinner, 211 Ill. 229, 239, it is said (italics ours): “If there has been no delivery of personal property, the seller who has offered performance on his part may consider the property as the purchaser’s, and may either sell it and sue for the unpaid balance of the price, or may hold it subject to the call or order of the purchaser and recover the whole price. * * * The seller often chooses to retain the title to the property and recover the difference between the value and the contract price, but if the property remains in his hands he is not obliged to consider it as his own.” In the case of Alvey-Ferguson Co. v. Ernst Tosetti Brewing Co., 178 Ill. App. 536, 543, it was said in an opinion of this court: “The Supreme Court of Illinois, however, has several times held that the giving of a notice by the vendee to stop performance, or a notice that the vendee will refuse to accept the goods sold if tendered, does not, per se, create a breach of the contract, except at the election of the vendor. In such cases it is held that the vendor may elect to treat the notice as a breach of the contract and sue at once for damages occasioned thereby, but he is not bound to do so. He may, if he prefers, elect to keep the contract alive notwithstanding such notice, being ready and able at all times, in snch case, to perform Ms part of the contract.” In the present case, plaintiff, by the written contract, agreed to “cut, haul and deliver on board cars” at Florence Station 500 cords of wood for $3.25 per cord, and it appears from the evidence that when he received defendant’s letter of February 23, 1912 directing him not to ship any more wood, he had already shipped 204 cords to defendant, and that 96 other cords had been hauled to Florence Station and were piled near the sidetrack ready for shipment, and that the balance, 200 cords, had not yet been taken out of the woods where said cords had been cut. Under the additional count of the declaration, plaintiff sought to recover the full contract price of the 500 cords, less payments received, and the case was prosecuted on that theory. It further appears that plaintiff, upon the receipt of the letter of February 23rd, ceased making any further shipments of the wood but it does not appear that he notified defendant that he elected to “keep the contract alive for the benefit of both parties,” or that he took any steps to store or properly protect the undelivered cords of wood for defendant notifying the latter that he had done so, or that he advised defendant that the undelivered cords were “subject to the call or order” of defendant. On the contrary, it appears from plaintiff’s letter of March 6th that plaintiff wrote defendant that he had sold some of the wood “to Kramer Bros, at Iron Mountain,” that he had about “six cars left” (about 72 cords), and inquired if the defendant could use the same then or within a month. This certainly does not tend to show that plaintiff was “at all times himself ready and able to perform.” We are of the opinion that, under the facts in evidence, the giving of the instruction above set forth constituted error prejudicial to the defendant. The instruction was misleading. It in effect told the jury that if they believed from the evidence that at the time plaintiff received defendant’s directions not to deliver the remaining 296 cords, plaintiff was able, ready and willing to deliver said 296 cords, then plaintiff was entitled to recover the full contract price, less payments and the cost of hauling the unhauled cords, even though subsequently and at all times plaintiff was not able to deliver said remaining 296 cords. By this instruction the jury, in considering the same in connection with the testimony, might have inferred that plaintiff might recover of defendant the full contract price, less payments and said cost of hauling, even though plaintiff, after receiving defendant’s said directions, had himself sold some of the undelivered cords of wood and did not consider said cords as belonging to the defendant and subject to its call or order. Because of the giving of this instruction we think the judgment must be reversed and the cause remanded for a new trial. And in view of this decision it may not be out of place for us to say that we do not think that the County Court was without jurisdiction to hear the case and enter a judgment, as urged by counsel for defendant. The argument is, that by section 95 of chapter 37 of the Illinois Statutes (J. & A. jf 3131), the County Court is given jurisdiction in all that class of cases wherein justices of the peace now have or may hereafter have jurisdiction, where the “amount claimed or the value of the property in controversy shall not exceed $1,000,” and that it appears from plaintiff’s additional count that plaintiff claimed there was due and owing him by the defendant “the sum of $1,071.92,” which is an amount in excess of the jurisdiction of said court. It is to be noticed that in the writ of summons served upon the defendant the damages claimed by the plaintiff were stated to be $1,000, and in the ad dammum clause in plaintiff’s original declaration the damages were also placed at $1,000, and it does not appear that this ad damnum was increased in amount. If the plaintiff thought that at the time he brought suit defendant owed him more that $1,000, it was his privilege, if he chose to release and forgive a part of the debt. Raymond v. Strobel, 24 Ill. 114, 115; Carpenter v. Wells, 65 Ill. 451; Ellis v. Snider, Breese 336. When he brought suit in said County Court he claimed damages in the sum of $1,000, the limit of the court’s jurisdiction. In 1 Cyc. 763, the ad damnum is said to be “that part of the plaintiff’s pleading in which he alleges the amount for which he claims recovery.” And the jurisdiction of the County Court depends upon the amount claimed by the plaintiff. Young v. Mueller Bros. Art. & Mfg. Co., 124 Ill. App. 94, 96; Hull v. Webb, 78 Ill. App. 617, 619; People v. Summers, 16 Ill. 173, 174. And in all actions sounding in damages, as assumpsit and tort, the amount claimed is to be ascertained by the ad damnum. Cole v. Hayes, 78 Maine, 539, 541; Hapgood v. Doherty, 8 Gray (Mass.) 373, 374; Walcott v. Holcomb, 24 Ill. 331; Wright v. Smith, 76 Ill. 216. The judgment of the County Court is reversed and the cause remanded. Reversed and remanded.