{ "id": 3551505, "name": "GREAT WESTERN SUGAR COMPANY, Plaintiff-Appellee, v. WORLD'S FINEST CHOCOLATE, INC., Defendant-Appellant", "name_abbreviation": "Great Western Sugar Co. v. World's Finest Chocolate, Inc.", "decision_date": "1988-05-06", "docket_number": "No. 85-0605", "first_page": "949", "last_page": "958", "citations": [ { "type": "official", "cite": "169 Ill. App. 3d 949" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "253 Ill. App. 551", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5544603 ], "opinion_index": 0, "case_paths": [ "/ill-app/253/0551-01" ] }, { "cite": "600 F.2d 103", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1453091 ], "opinion_index": 0, "case_paths": [ "/f2d/600/0103-01" ] }, { "cite": "434 N.E.2d 786", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "105 Ill. App. 3d 723", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5470554 ], "pin_cites": [ { "page": "729-30" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/105/0723-01" ] } ], "analysis": { "cardinality": 767, "char_count": 21218, "ocr_confidence": 0.789, "pagerank": { "raw": 6.36470252326789e-08, "percentile": 0.39005343554778676 }, "sha256": "5b46b3da395954eda90b099b6f3c2a10009a3d761b914e568f8e66d675a69060", "simhash": "1:66eb4f46aa009d90", "word_count": 3390 }, "last_updated": "2023-07-14T17:11:49.091625+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GREAT WESTERN SUGAR COMPANY, Plaintiff-Appellee, v. WORLD\u2019S FINEST CHOCOLATE, INC., Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE PINCHAM\ndelivered the opinion of the court:\nPlaintiff, The Great Western Sugar Company (Great Western), instituted this action against the defendant, World\u2019s Finest Chocolate, Inc. (World\u2019s Finest), for an alleged breach of a contract for the sale of sugar. After a trial by the court judgment in the amount of $60,445.48 and costs was entered against World\u2019s Finest in favor of Great Western. World\u2019s Finest appeals. We affirm.\nThe facts established at trial follow. Great Western was in the business of manufacturing and selling sugar. Jim Carroll was Great Western\u2019s regional sales manager in the Chicago area. World\u2019s Finest was in the business of manufacturing chocolate for sale to charitable and fund-raising organizations. Jim Herrick was responsible for World\u2019s Finest\u2019s purchases of sugar and other materials. Herrick arranged for the purchase of sugar by World\u2019s Finest from Great Western through Carroll.\nOn October 20, 1980, in a telephone conversation with Carroll, Herrick ordered 6,000 hundredweights of sugar from Great Western. Herrick and Carroll agreed that the sugar would be delivered to World\u2019s Finest during the first quarter of 1981. Following the October 20, 1980, telephone conversation between Herrick and Carroll, C. H. Criswell, Great Western\u2019s vice-president in sales, sent to Herrick a confirmation letter dated October 24, 1980, confirming the terms of the October 20 telephone agreement between Carroll and Herrick. Criswell\u2019s letter stated in pertinent part:\n\u201cDear Mr. Herrick:\nWe are pleased to confirm our refined sugar sale to you, under the following conditions:\nQuantity: 6,000 CWT\nProduct: Truckloads Bulk Sugar EFG\nDelivery Period and Price: Jan \u2014 Mar \u201981 \u2014 6000 CWT @ $47.90 plus Actual Freight\nPayment Terms: 2% 10 Net Days from date of invoice\nOther Conditions: Delivered price of $49.76 was authorized by Mr. C. H. Criswell to meet competition from Indiana Sugars.\nThis letter is a written confirmation of our agreement, and unless it is signed by the Buyer and returned to Great Western within 15 days from the date hereof, the agreement shall be deemed breached by Buyer and automatically terminated. Please sign and return to me the enclosed counterpart of this letter signalling your acceptance of the above agreement.\n* * *\nBy: C. H. Criswell\nTitle: Vice President-Sales Great Western Sugar Company\u201d\nThe enclosed counterpart of the above letter was returned by Herrick to Criswell with the following signature:\n\u201cAccepted:\nCompany Name: World\u2019s Finest\nBy: J. R. Herrick\nTitle: Purchasing Agent\u201d\nAt this point, the plaintiff\u2019s and the defendant\u2019s versions of subsequent events differ.\nCarroll testified that in 1969, when he entered the sugar industry\u2019s marketplace in the Chicago area, many large sugar buyers were afforded downside price protection. Carroll defined downside price protection as a custom which provided for a ceiling, but not a floor, on the price of sugar. Carroll testified further that the sugar seller would set a maximum price at which a particular buyer could purchase sugar during a period of time agreed upon between the seller and purchaser. If the market price of sugar declined before delivery, then the buyer could purchase the sugar at the lower market price from the seller. Carroll testified that the sugar industry eliminated the practice of downside price protection in late 1974 or early 1975 and that the practice did not exist in the sugar industry in the Chicago area in 1980, when the agreement in controversy was entered into. Carroll testified that from 1975 through 1978 he worked for three different sugar sellers and that none of them offered their buyers downside price protection. Moreover, Carroll testified, he was employed by Great Western from 1979 through 1981 and during that time Great Western did not offer its sugar buyers downside price protection.\nWilliam Nelson, a 26-year Great Western employee, also testified on behalf of plaintiff, Great Western. Nelson testified that the price of sugar increased dramatically during 1980 and peaked in November 1980 at $52 per hundredweight. By the summer of 1981, Nelson stated, the price of sugar dropped to $20 per hundredweight. Nelson also testified that after 1974 sugar companies sold sugar at current prices to be delivered to the buyer in the future without regard to the price of sugar at the time of the future delivery. He also stated that there were prompt sugar sales under contracts with firm price agreements. Sugar sellers after 1974 did not engage in downside price protection, stated Nelson.\nNelson was asked to explain the \u201cOther Conditions\u201d clause in Criswell\u2019s confirmation letter of October 20, 1980. Nelson explained that during negotiations the buyer, Herrick, stated that Indiana Sugars, a Great Western competitor, was offering sugar at a lower delivered price than Great Western, and therefore, the Great Western salesman obtained authorization from Great Western\u2019s Denver office to offer the buyer the same delivered price as Indiana Sugars\u2019 delivered price. Nelson testified that Great Western salesmen and brokers were not authorized to offer price protection to cover buyers in a declining market. Regarding agreed-upon pricing, Nelson testified that Great Western would not change a negotiated price under any circumstance.\nHerrick testified on behalf of defendant, World\u2019s Finest. Herrick testified that during his conversation with Carroll on October 20, 1980, he explicitly stated to Carroll that he, Herrick, would send a purchase order to Great Western containing the legend, \u201cFor delivery as needed during 1st quarter, 1981. Unused quantities during 1st quarter of 1981 will be cancelled.\u201d Herrick testified that his inclusion of the \u201cunused quantities\u201d language in the purchase order meant that Great Western was required to meet the selling price of any of Great Western\u2019s competitors, and not just Indiana Sugars. Herrick stated further that the \u201cunused quantities\u201d language was indicative of a widely practiced custom in the sugar industry known as downside price protection.\nHerrick defined downside price protection as a custom which provided that in the event a buyer placed an order for sugar with a sugar seller and was subsequently able to obtain a lower market price from a different seller, then the first seller would be required to meet the subsequent lower market price, or, in the alternative, the seller was required to allow the buyer to cancel the order and obtain the sugar from another source at the lower price. Herrick further testified that the \u201cunused quantities\u201d language guaranteed World\u2019s Finest the right to cancel the order in the event that Great Western refused to meet its competitors\u2019 prices. Herrick also testified that when he voiced his demand for downside price protection to Carroll, Carroll replied that his superiors at Great Western\u2019s Denver office would have to approve the inclusion of the \u201cunused quantities\u201d language in the sales agreement, that he doubted that the Denver office would approve it, and that he would contact Herrick again after discussing the \u201cunused quantities\u201d provision with his Denver office.\nHerrick testified that he forwarded the purchase order to Carroll on October 20, 1980, and shortly thereafter, Carroll called him and stated, \u201cEverything\u2019s all set.\u201d Herrick testified that even though Carroll did not mention downside price protection in this conversation, he believed that Great Western had agreed to give World\u2019s Finest downside price protection.\nHerrick testified that in early January 1981, Carroll asked Herrick when World\u2019s Finest wanted the sugar delivered. Relying upon the \u201cunused quantities\u201d language in his purchase order, Herrick told Carroll that the price of sugar had declined considerably and demanded that Great Western sell the 6,000 hundredweights of sugar to World\u2019s Finest at a price lower than the contract price. Carroll refused to lower the price of the sugar and Herrick refused to schedule a date for delivery of the sugar. In February 1981, Carroll inquired again as to when World's Finest would take delivery of the sugar which it had ordered. Herrick stated, \u201cNot at those prices,\u201d and again refused to schedule delivery at the contract price. In March 1981, Herrick received a letter from William Sheehy of Great Western, regarding delivery of the sugar to World\u2019s Finest. Herrick testified that he replied that the \u201cunused quantities\u201d language in his purchase order relieved World\u2019s Finest of any contractual obligation to purchase the ordered sugar at the contract price and again refused to schedule delivery.\nIn finding for plaintiff, Great Western Sugars, and against defendant, World\u2019s Finest, the trial judge rejected Herrick\u2019s testimony that the \u201cunused quantities\u201d language was incorporated in the contract. The trial court found that Great Western\u2019s October 20, 1980, confirmation letter did not incorporate the \u201cunused quantities\u201d language of World\u2019s Finest\u2019s purchase order. The trial court held that \u201cPlaintiff\u2019s Exhibit 1 [the October 20, 1980, confirmation letter] was controlling\u201d and that \u201c[i]t shows the intent of the parties as expressed and as accepted by both parties.\u201d The trial court cited and relied on section 2\u2014 202 of the Uniform Commercial Code, which states:\n\u201cTerms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented\n(a) by course of dealing or usage of trade (Section 1 \u2014 205) or by course of performance (Section 2 \u2014 208); and\n(b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.\u201d Ill. Rev. Stat. 1979, ch. 26, par. 2 \u2014 202.\nDuring the precontract negotiations, Herrick told Carroll that World\u2019s Finest would not buy the sugar unless Great Western included the \u201cunused quantities\u201d language in the contract. Carroll stated that he would first have to get the approval of the Denver office and also that he doubted that that was possible. Carroll agreed to relay World\u2019s Finest\u2019s demand to the Denver office and then get back to Herrick on the subject. It was undisputed at trial that Carroll did not speak to Herrick again regarding the unused quantities language.\nThe trial court found that Herrick could not have interpreted Carroll\u2019s later silence on the \u201cunused quantities\u201d language as Great Western\u2019s acceptance of the term as a part of the contract because Carroll had explicitly told Herrick that his Denver office would have to approve the term and that he doubted that the Denver office would do so. The trial court held that under these circumstances World\u2019s Finest\u2019s \u201cunused quantities\u201d demand constituted a counterproposal, acceptance of which was not evidenced by Carroll\u2019s silence on the matter.\nHerrick did not insist on Great Western\u2019s acceptance of the \u201cunused quantities\u201d language as a condition precedent to confirm the agreement. Instead, Herrick sent a purchase order which confirmed delivery at $49.76 per hundredweight, the agreed-upon price, \u201cfor delivery as needed during the 1st quarter of 1981.\u201d Herrick also included in the purchase order the statement, \u201cUnused quantities during the 1st quarter will be cancelled.\u201d\nWorld\u2019s Finest here contends that the contract incorporates its purchase order and that the contract was also subject to a prior course of dealing and custom of the sugar industry and downside price protection, both of which precluded liability for World\u2019s Finest failure to take any sugar in the first quarter of 1981. World\u2019s Finest further contends that because Great Western failed to meet the lower market prices of Great Western\u2019s competitors, World\u2019s Finest was not obligated to pay the higher contract price. Again, we disagree.\nIn Peoria Harbor Marina v. McGlasson (1982), 105 Ill. App. 3d 723, 729-30, 434 N.E.2d 786, we stated:\n\u201cThe question of a condition precedent not written into the final agreement brings us to the parol evidence rule as found in section 2 \u2014 202 of the UCC (Ill. Rev. Stat. 1979, ch. 26, par. 2\u2014 202). This section provides that a writing intended by the parties as a final expression of their agreement may not be contradicted by evidence of any prior agreement or contemporaneous oral agreement. However, the writing may be explained or supplemented by evidence of consistent additional terms, unless the court makes the determination that the writing was intended also as a complete and exclusive statement of their terms. It is the trial court that decides whether the writing was to be the final expression of the parties\u2019 agreement. If the trial court decides that it was, contradictory parol evidence should be precluded. Luria Brothers & Co. v. Pielet Brothers Scrap Iron & Metal, Inc. (7th Cir. 1979), 600 F.2d 103.\u201d\nHerrick testified that the terms \u201cunused quantities\u201d and \u201cdownside price protection\u201d were used interchangeably in the sugar industry, but he offered no other evidence to support this contention. The evidence established that downside price protection meant that the buyer need not purchase any sugar once the seller failed to lower its price to meet the lower market price. The buyer thus had an option not to purchase at all. The evidence also established that \u201cunused quantities\u201d meant that once the major portion of the order had been delivered, then any insignificant \u201cunused quantities\u201d remaining need not be delivered. The trial court ruled, \u201cThere is no evidence here that unused quantities was used for the entire agreement ***. It\u2019s unavailing to the purchaser for [sic] World\u2019s Finest Chocolate to say that that gave them the right to cancel the whole contract.\u201d Moreover, when Herrick was specifically asked on direct examination whether Carroll ever told him that the \u201cunused quantities\u201d language was part of the agreement or whether the Denver office accepted the term, Herrick answered, \u201cNo.\u201d Likewise, when Herrick was asked on direct examination whether there was ever any response from Great Western, either through Carroll or the Denver office, signalling acceptance of the \u201cunused quantities\u201d term, Herrick replied, \u201cNo, they never said that.\u201d\nThe trial court correctly concluded that Great Western\u2019s intent not to incorporate the \u201cunused quantities\u201d language in the contract was evident from Carroll\u2019s silence and that Herrick\u2019s inclusion of the \u201cunused quantities\u201d language in the purchase order did not obligate Great Western to accept the term as a part of the contract. We agree with the trial court\u2019s finding that there was a binding agreement evidenced by the confirmation letter, plaintiff\u2019s exhibit No. 1, and World\u2019s Finest could not abrogate that binding agreement by invoking the unincorporated language of the purchase order. Great Western is therefore not estopped from asserting that the \u201cunused quantities\u201d language of the purchase order was not incorporated in the agreement as World\u2019s Finest here contends. Under the circumstances we need not address World\u2019s Finest\u2019s contention that the trial court erred in construing the terms of the purchase order.\nWe next address World\u2019s Finest\u2019s contention that Great Western\u2019s failure to tender the 6,000 hundredweights of sugar constituted a failure to perform a condition precedent to World\u2019s Finest\u2019s duty to accept any sugar. This argument is without merit. Section 2 \u2014 503 (Ill. Rev. Stat. 1979, ch. 26, par. 2 \u2014 503), states:\n\u201c(1) Tender of delivery requires that the seller put and hold conforming goods at the buyer\u2019s disposition and give the buyer any notification reasonably necessary to enable him to take delivery. The manner, time and place for tender are determined by the agreement and this Article, and in particular:\n(a) Tender must be at a reasonable hour, and if it is of goods they must be kept available for the period reasonably necessary to enable the buyer to take possession; but\n(b) unless otherwise agreed the buyer must furnish facilities reasonably suited to the receipt of the goods.\u201d (Emphasis added.)\nThe Uniform Commercial Code comment to section 2 \u2014 503 (Ill. Rev. Stat. 1979, ch. 26, par. 2 \u2014 503) provides that tender of delivery contemplates an offer coupled with a present ability to fulfill all the conditions resting on the tendering party and must be followed by actual performance if the other party shows a readiness to proceed. Additionally, the comment states that \u201ctender connotes such performance by the tendering party as puts the other party in default if he fails to proceed in some manner.\u201d\nThe evidence was undisputed that at all times relevant to these proceedings Great Western had sugar in its possession to be delivered \u201cat the buyer\u2019s disposition.\u201d The evidence also established that pursuant to the agreement between Great Western and World\u2019s Finest and the custom and usage in the sugar industry, the manner and time and place of deliveries were designated by the buyer\u2019s call to the seller for sugar as it was needed by the buyer. Here, World\u2019s Finest refused on several occasions to furnish Great Western with any dates that it would accept delivery of the ordered sugar and refused to furnish facilities suited to the receipt of the ordered sugar. Great Western\u2019s tender constituted a performance sufficient to put World\u2019s Finest in default when Herrick rejected the sugar stating, \u201cNot at those prices.\u201d\nWorld\u2019s Finest repudiated the contract by refusing to accept the sugar which it contracted to purchase. Therefore, even if Great Western had not made a formal tender of the sugar, a formal tender was excused by World\u2019s Finest\u2019s repudiation and did not constitute a condition precedent to World\u2019s Finest\u2019s duty to accept the sugar. (See Ill. Rev. Stat. 1979, ch. 26, par. 2 \u2014 610(c); Interocean Mercantile Corp. v. Sawyer Biscuit Co. (1929), 253 Ill. App. 551 (holding that a buyer\u2019s repudiation of a contract excused the seller\u2019s formal tender of delivery).) The trial court\u2019s finding that \u201cno further tender was necessary\u201d was abundantly supported by the evidence.\nWorld\u2019s Finest next contends that the trial court erred in selecting a date subsequent to the date of World\u2019s Finest purported repudiation as the date from which to measure damages. This argument is without merit.\nThe comment to section 2 \u2014 610 also states that the measure of damages applicable in a case of repudiation by the buyer is prescribed by section 2 \u2014 708 (Ill. Rev. Stat. 1979, ch. 26, par. 2 \u2014 708), which states:\n\u201c(1) Subject to subsection (2) and to the provisions of this Article with respect to proof of market price (Section 2 \u2014 723), the measure of damages for non-acceptance or repudiation by the buyer is the difference between the market price at the time and place for tender and the unpaid contract price together with any incidental damages provided in this Article (Section 2 \u2014 710), but less expenses saved in consequence of the buyer\u2019s breach.\u201d\nHerrick and Carroll both testified that in early January 1981, they discussed delivery of the sugar but that Herrick refused to schedule a date for delivery. Great Western left the determination of the amount of damages to the discretion of the court. The court, using the UCC as a guideline, selected January 15, 1981, as the date for the assessment of damages. World\u2019s Finest could have called for delivery at any time in the first quarter of 1981, January 1, 1981, through March 31, 1981. We cannot conclude that the trial court erred in selecting January 15,1981, as the date on which to measure damages.\nOn January 15, 1981, the market price of a hundredweight of sugar was $39.50. The contract price of the sugar was $47.90 per hundredweight, leaving a price differential of $8.40 per hundredweight. At a price differential of $8.40 per hundredweight, the trial court correctly awarded Great Western damages on the 6,000 hundredweights of sugar in the amount of $50,400. We find no reason to alter the trial court\u2019s assessment of damages.\nFinally, World\u2019s Finest contends that the damages were not liquidated, certain, or readily calculable and therefore the trial court should not have awarded Great Western prejudgment interest. The trial court correctly assessed damages at $50,400 and awarded the plaintiff the statutory interest of 5% of that amount from January 15, 1981, to the date it rendered judgment. See section 2 of the Interest Act (Ill. Rev. Stat. 1973, ch. 74, par. 2).\nThe judgment of the circuit court is affirmed.\nAffirmed.\nLORENZ, P.J., and MURRAY, J., concur.", "type": "majority", "author": "JUSTICE PINCHAM" } ], "attorneys": [ "Narcisse A. Brown and John L. Hines, Jr., both of Schwartz, Cooper, Kolb & Gaynor, Chartered, of Chicago, for appellant.", "Benjamin D. Schwartz, of Altheimer & Gray, of Chicago, and Victor E Boog, of Bradley, Campbell & Carney, P.C., of Golden, Colorado, for appellee." ], "corrections": "", "head_matter": "GREAT WESTERN SUGAR COMPANY, Plaintiff-Appellee, v. WORLD\u2019S FINEST CHOCOLATE, INC., Defendant-Appellant.\nFirst District (5th Division)\nNo. 85\u20140605\nOpinion filed May 6, 1988.\nRehearing denied June 14, 1988.\nNarcisse A. Brown and John L. Hines, Jr., both of Schwartz, Cooper, Kolb & Gaynor, Chartered, of Chicago, for appellant.\nBenjamin D. Schwartz, of Altheimer & Gray, of Chicago, and Victor E Boog, of Bradley, Campbell & Carney, P.C., of Golden, Colorado, for appellee." }, "file_name": "0949-01", "first_page_order": 971, "last_page_order": 980 }