{ "id": 1472419, "name": "SHIELDS PORK PLUS, INC., Plaintiff-Appellant and Cross-Appellee, v. SWISS VALLEY AG SERVICE, Defendant-Appellee and Cross-Appellant", "name_abbreviation": "Shields Pork Plus, Inc. v. Swiss Valley Ag Service", "decision_date": "2002-04-16", "docket_number": "No. 4\u201401\u20140239", "first_page": "305", "last_page": "322", "citations": [ { "type": "official", "cite": "329 Ill. App. 3d 305" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "545 N.E.2d 731", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "131 Ill. 2d 273", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5569994 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-2d/131/0273-01" ] }, { "cite": "420 N.E.2d 800", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "pin_cites": [ { "page": "804" } ], "opinion_index": 0 }, { "cite": "95 Ill. App. 3d 517", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3116907 ], "year": 1981, "pin_cites": [ { "page": "522" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/95/0517-01" ] }, { "cite": "528 N.E.2d 684", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "pin_cites": [ { "page": "686", "parenthetical": "\"[djoubtful and indefinite statements that performance may or may not take place are not enough to constitute anticipatory repudiation\"" } ], "opinion_index": 0 }, { "cite": "124 Ill. 2d 19", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3218282 ], "year": 1988, "pin_cites": [ { "page": "24", "parenthetical": "\"[djoubtful and indefinite statements that performance may or may not take place are not enough to constitute anticipatory repudiation\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0019-01" ] }, { "cite": "652 N.E.2d 1192", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "1197", "parenthetical": "requiring a \"positive and unequivocal manifestation of a party's intent not to render the performance promised\"" } ], "opinion_index": 0 }, { "cite": "273 Ill. App. 3d 923", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258655 ], "year": 1995, "pin_cites": [ { "page": "930", "parenthetical": "requiring a \"positive and unequivocal manifestation of a party's intent not to render the performance promised\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/273/0923-01" ] }, { "cite": "14 J. Marshall L. Rev. 113", "category": "journals:journal", "reporter": "J. Marshall L. Rev.", "year": 1980, "pin_cites": [ { "page": "114-15" } ], "opinion_index": 0 }, { "cite": "703 N.E.2d 71", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "80", "parenthetical": "\"a buyer's statement of intent not to accept delivery of goods constitutes an anticipatory repudiation\"" }, { "page": "80", "parenthetical": "requiring a \"clear\" statement of intention not to perform" } ], "opinion_index": 0 }, { "cite": "184 Ill. 2d 224", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 926969 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "243", "parenthetical": "\"a buyer's statement of intent not to accept delivery of goods constitutes an anticipatory repudiation\"" }, { "page": "243" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/184/0224-01" ] }, { "cite": "578 N.E.2d 1337", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "1345" } ], "opinion_index": 0 }, { "cite": "219 Ill. App. 3d 32", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5801847 ], "year": 1991, "pin_cites": [ { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/219/0032-01" ] }, { "cite": "382 N.E.2d 1205", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "pin_cites": [ { "page": "1210" } ], "opinion_index": 0 }, { "cite": "73 Ill. 2d 100", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5441500 ], "year": 1978, "pin_cites": [ { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/73/0100-01" ] }, { "cite": "661 N.E.2d 505", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "510" } ], "opinion_index": 0 }, { "cite": "277 Ill. App. 3d 728", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1172449 ], "year": 1996, "pin_cites": [ { "page": "734" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/277/0728-01" ] }, { "cite": "633 N.E.2d 884", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "887" } ], "opinion_index": 0 }, { "cite": "261 Ill. App. 3d 531", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5372793 ], "year": 1994, "pin_cites": [ { "page": "534" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/261/0531-01" ] }, { "cite": "641 N.E.2d 957", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "962" } ], "opinion_index": 0 }, { "cite": "267 Ill. App. 3d 574", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 333154 ], "year": 1994, "pin_cites": [ { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/267/0574-01" ] }, { "cite": "621 N.E.2d 1046", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "1051" } ], "opinion_index": 0 }, { "cite": "251 Ill. App. 3d 244", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2959705 ], "year": 1993, "pin_cites": [ { "page": "251" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/251/0244-01" ] }, { "cite": "615 N.E.2d 1236", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1993, "pin_cites": [ { "page": "1244" }, { "page": "1244" }, { "page": "1243" }, { "page": "1244" }, { "page": "1244" } ], "opinion_index": 0 }, { "cite": "246 Ill. App. 3d 290", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5388276 ], "weight": 5, "year": 1993, "pin_cites": [ { "page": "300-01" }, { "page": "300-01" }, { "page": "299-300" }, { "page": "301" }, { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/246/0290-01" ] }, { "cite": "565 N.E.2d 990", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "994" }, { "page": "994" } ], "opinion_index": 0 }, { "cite": "141 Ill. 2d 281", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238241 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "288" }, { "page": "288-89" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/141/0281-01" ] }, { "cite": "529 N.E.2d 1138", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "pin_cites": [ { "page": "1145" } ], "opinion_index": 0 }, { "cite": "175 Ill. App. 3d 607", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3553707 ], "year": 1988, "pin_cites": [ { "page": "617" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/175/0607-01" ] }, { "cite": "657 N.E.2d 688", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "692" }, { "page": "692" } ], "opinion_index": 0 }, { "cite": "275 Ill. App. 3d 971", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 906721 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "978" }, { "page": "977" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/275/0971-01" ] }, { "cite": "581 N.E.2d 664", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "667" } ], "opinion_index": 0 }, { "cite": "144 Ill. 2d 440", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5592225 ], "year": 1991, "pin_cites": [ { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/144/0440-01" ] }, { "cite": "617 N.E.2d 69", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "70" }, { "page": "71" }, { "page": "71" } ], "opinion_index": 0 }, { "cite": "247 Ill. App. 3d 316", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2928217 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "318" }, { "page": "318" }, { "page": "318" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/247/0316-01" ] }, { "cite": "547 N.E.2d 574", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "page": "575" } ], "opinion_index": 1 }, { "cite": "191 Ill. App. 3d 245", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2511161 ], "year": 1989, "pin_cites": [ { "page": "246" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/191/0245-01" ] }, { "cite": "545 N.E.2d 731", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "732" }, { "page": "733" }, { "page": "733" } ], "opinion_index": 1 }, { "cite": "131 Ill. 2d 273", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5569994 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "276" }, { "page": "278" }, { "page": "279" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/131/0273-01" ] } ], "analysis": { "cardinality": 1336, "char_count": 38506, "ocr_confidence": 0.76, "pagerank": { "raw": 1.5327057423871169e-07, "percentile": 0.671421577088085 }, "sha256": "00673f96d3843e1d2d0c45318b8937ebf777e5061be1d53d2cf644f029ecfd50", "simhash": "1:cff245f93d448be0", "word_count": 6308 }, "last_updated": "2023-07-14T18:00:16.668960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SHIELDS PORK PLUS, INC., Plaintiff-Appellant and Cross-Appellee, v. SWISS VALLEY AG SERVICE, Defendant-Appellee and Cross-Appellant." ], "opinions": [ { "text": "JUSTICE COOK\ndelivered the opinion of the court:\nPlaintiff, Shields Pork Plus, Inc., and defendant, Swiss Valley Ag Service, entered into a contract for the sale of feeder pigs. Under this contract, plaintiff was to provide high-quality feeder pigs \u201cof a New-sham line\u201d to defendant, who would then resell the pigs to its customers. Plaintiff claimed the defendant breached the contract when it did not accept a portion of a delivery under the contract. Defendant counterclaimed, arguing that plaintiff breached the contract when it abandoned all efforts to convert its pig herd to 100% Newsham genetics. Both parties have appealed the trial court\u2019s judgment finding that both parties had repudiated the contract. We affirm in part, reverse in part, and remand.\nI. BACKGROUND\nIn the latter part of 1997, plaintiff and defendant began negotiations regarding the purchase and sale of feeder pigs \u2014 weaned pigs weighing between 35 and 60 pounds. At that time, plaintiffs herd was made up of pigs from the Newsham, Liske, and Duroc genetic lines. Representatives of defendant expressed an interest in purchasing 100% Newsham pigs. The vice-president of plaintiff, Phillip Shields (Shields), informed defendant that he had a fairly young herd of sows, mostly Liske, so he did not need to buy any in the immediate future. Nevertheless, Shields informed defendant that when the Liske sows needed to be replaced, they would be replaced with Newsham gilts\u2014 nonpregnant female pigs \u2014 which would be bred with Newsham boars or Newsham semen.\nA representative of defendant acknowledged that the full conversion to Newsham would likely take more than one year. Similarly, plaintiff was aware that defendant was not the final purchaser of the pigs, but would be reselling the pigs to its feed customers. Nevertheless, both parties entered into the sales contract in February 1998 and negotiated a price term based upon the weight of the pigs and the price of a pig futures contract the week of delivery. The term of the contract was 36 months, with monthly shipments to be made according to an attached schedule. The record does not include such a schedule but, rather, a computation of damages based upon the alleged schedule. However, the recitations of the contract indicate that both parties anticipated that each monthly shipment would number approximately 600 pigs.\nThe contract provided, in paragraph 2, that plaintiff was to \u201cput forth its best effort to provide healthy!,] high[-]quality feeder pigs.\u201d Further, a pig was defined under the contract as \u201cmerchantable\u201d if it weighed between 35 and 65 pounds and was \u201cprogeny from a New-sham fine then sold commercially in the United States.\u201d Any change in the genetic makeup of the herd was to be approved by the defendant.\nUnder the contract, defendant was responsible for transporting the pigs from plaintiffs farm. The contract also listed several reasons why pigs could be rejected or discounted at the time of delivery. According to the contract, any pig could be rejected if, upon delivery, it was ruptured, splay-legged, crippled, or sick, or if the pig\u2019s tail had not been docked. Further, the contract permitted the seller to reject any pig that did not \u201cmeet the criteria set forth in [the section defining merchantability and genetic makeup].\u201d\nOn March 13, 1998, defendant took delivery of an initial shipment of 600 pigs and accepted all of the pigs as conforming to the contract. The second delivery under the contract, scheduled for April 24, 1998, was allegedly to be of 680 pigs. However, at the time the plaintiff tendered the pigs, defendant only accepted 380 of the 680 pigs, stating that one of its subsequent purchasers had no need for additional pigs. A representative of defendant met with plaintiff to discuss the 300 pigs that were not accepted. At that time, according to defendant, plaintiff indicated that the rejected pigs would be sold elsewhere. Plaintiff did not demand that defendant accept the 300 pigs.\nThereafter, until August 1998, both parties performed under the contract. While the record is inconclusive as to the number of pigs to be delivered in each of these four months, the parties appear to agree that full performance was tendered by both parties. Each month, plaintiff tendered approximately 600 pigs, the majority of which were accepted by defendant. Defendant rejected 23 pigs in the June 1998 shipment of 675 pigs, which were replaced by plaintiff. Defendant further rejected 23 pigs in one of two July 1998 shipments, which were also replaced by plaintiff.\nAccording to defendant, in June 1998, one of defendant\u2019s ultimate purchasers of the pigs, David Catlett, advised defendant of performance problems with some of the pigs that defendant had purchased from plaintiff. Catlett told defendant that he had met with a representative of plaintiff that month and had been advised that plaintiff was not purchasing Newsham gilts, but was producing Newsham gilts himself. According to Catlett, a 100% Newsham pig could not be produced through such a process.\nSimilarly, defendant\u2019s expert, Dr. Kevin Eggers, a veterinarian, testified that at the same meeting, Shields told him that plaintiff had stopped buying Newsham gilts because it could not afford to financially. Dr. Eggers further testified that a Newsham pig cannot be made from anything other than Newsham parents.\nOn August 3, 1998, plaintiff delivered 600 pigs to defendant, which were accepted by defendant. However, shortly after the delivery, a representative of defendant contacted plaintiff and reported some problems with some of the pigs in the shipment. Plaintiff offered t\u00f3 replace the problem pigs, but defendant refused. Further, defendant, notified plaintiff that it would no longer accept any pigs from plaintiff under the contract, citing the refusal of defendant\u2019s ultimate purchasers to accept the pigs. Plaintiff responded by informing defendant it would sell the remaining pigs on the open market.\nOn December 8, 1998, plaintiff filed a complaint against defendant for breach of contract, seeking damages for defendant\u2019s rejection of the 300 pigs in April 1998, as well as for all scheduled deliveries after August 3, 1998. On January 7, 1999, defendant filed an answer and counterclaimed against plaintiff for failure to provide merchantable pigs under the contract.\nAfter a bench trial, the trial court found that both parties had repudiated the contract, and it denied both damage claims on February 19, 2001. Both parties timely filed notice of appeal in March 2001, but defendant has waived its cross-appeal.\nII. ANALYSIS\nA. The Parol Evidence Was Properly Considered\nIt is axiomatic that a court\u2019s principal goal in construing a contract is to ascertain and give effect to the parties\u2019 intent at the time they entered the contract. USG Corp. v. Sterling Plumbing Group, Inc., 247 Ill. App. 3d 316, 318, 617 N.E.2d 69, 70 (1993). Thus, if the contract terms are unambiguous, the parties\u2019 intent must be ascertained exclusively from the express language of the contract (Farm Credit Bank of St. Louis v. Whitlock, 144 Ill. 2d 440, 447, 581 N.E.2d 664, 667 (1991)), giving the words used their common and generally accepted meaning. Clay v. Illinois District Council of the Assemblies of God Church, 275 Ill. App. 3d 971, 978, 657 N.E.2d 688, 692 (1995).\nTherefore, \u201cwhen the language used is susceptible to more than one meaning [citation] or is obscure in meaning through indefiniteness of expression [citation],\u201d a contract is properly considered ambiguous. Wald v. Chicago Shippers Ass\u2019n, 175 Ill. App. 3d 607, 617, 529 N.E.2d 1138, 1145 (1988). This does not mean, however, that the parties\u2019 disagreement regarding how to interpret the terms of a contract, in itself, renders the contract ambiguous. USG Corp., 247 Ill. App. 3d at 318, 617 N.E.2d at 71. The determination of whether a contract is ambiguous is a question of law for the court. Clay, 275 Ill. App. 3d at 977, 657 N.E.2d at 692, citing Quake Construction, Inc. v. American Airlines, Inc., 141 Ill. 2d 281, 288, 565 N.E.2d 990, 994 (1990). But once the court determines that the contract is ambiguous, paroi evidence may be considered by the trier of fact in determining the parties\u2019 intent. Rybicki v. Anesthesia & Analgesia Associates, Ltd., 246 Ill. App. 3d 290, 300-01, 615 N.E.2d 1236, 1244 (1993).\nSince the finding of ambiguity by the trial court is a matter of law, we may review the trial court\u2019s finding independently, in the manner of a de nova review. Yamnitz v. William J. Diestelhorst Co., 251 Ill. App. 3d 244, 251, 621 N.E.2d 1046, 1051 (1993). Thus, we are presented with plaintiffs assertion that the trial court (a) improperly assumed that the contract was ambiguous, and (b) admitted paroi evidence to explain the ambiguity. We will first address the question of ambiguity.\nAt the very heart of the parties\u2019 dispute is the section of the contract which requires all pigs under the contract to be \u201cprogeny from a Newsham fine.\u201d Defendant suggests that this implies a requirement that both the boar and the sow be 100% Newsham. Plaintiff counters that while the phrase \u201cNewsham progeny\u201d may be susceptible to more than one interpretation, the phrase \u201cprogeny from a Newsham fine\u201d (emphasis added) is not. According to plaintiff, since there are two blood lines, that is, a male and female, producing any \u201cprogeny,\u201d the use of the word \u201ca\u201d implies that just one of the lines must be Newsham.\nWhile we are mindful that the parties\u2019 mere disagreement as to the definition of a contract term is not, of itself, reason to find ambiguity in a contract (USG Corp., 247 Ill. App. 3d at 318, 617 N.E.2d at 71), we cannot agree that the phrase \u201cprogeny from a Newsham line\u201d was sufficiently clear to avoid the finding of ambiguity. \u201cProgeny\u201d can be variously defined as \u201cdescendants; children; offspring of animals or plants\u201d (Merriam-Webster\u2019s Collegiate Dictionary 929 (10th ed. 2000)) or \u201c[t]he offspring (of a father or mother, or of both)\u201d (emphasis added) (12 Oxford English Dictionary 585 (2d ed. 1989)). It remains unclear from the face of the contract what is intended by the word \u201cprogeny.\u201d Must the pigs be the result of breeding a Newsham male, a Newsham female, or both? As to this question, the contract elucidates very little.\nBut the term \u201cprogeny\u201d is not the only source of the contract language\u2019s ambiguity; the phrase \u201cNewsham line\u201d is ambiguous as well. The fact that the word \u201cNewsham\u201d is a commercial description, a shortened form of Newsham Hybrids International, particularly persuades us in this regard. As a reference to the name of a company that markets and sells genetic material for animal husbandry, \u201cNew-sham\u201d might simply be descriptive of the company\u2019s products or of the animals that result from their use. Thus, by using the phrase \u201cNewsham line,\u201d did the parties intend that the animals to be bred must be Newsham or, rather, that the material used to breed be from the Newsham company?\nIn the light of these many uncertainties, we conclude that the trial court did not err in finding the contract ambiguous. This was confirmed at trial by the differing opinions of the parties\u2019 expert witnesses, all of whom the trial court found to be credible. Dr. Shipley, a veterinarian witness for the plaintiff, testified that, as worded, the contract would require only that the boar be Newsham, while another witness for the plaintiff opined that either the boar or the sow could satisfy the contract\u2019s requirements. Then, defendant\u2019s expert witness, Dr. Eggers, stated that both the sow and the boar must be Newsham to make a Newsham pig. This testimony only further convinces us of the soundness of the trial court\u2019s decision that the contract was ambiguous.\nPlaintiff has suggested that, had the parties desired 100% New-sham pigs, such a term easily could have been included. We recognize, at plaintiffs suggestion, that a presumption exists in Illinois \u201cagainst provisions that easily could have been included in the contract but were not\u201d and that \u201c[a] court will not add another term about which an agreement is silent.\u201d Klemp v. Hergott Group, Inc., 267 Ill. App. 3d 574, 581, 641 N.E.2d 957, 962 (1994). But this is not a case where an uncertainty exists as to the existence of a contract term. Rather, the uncertainty in the case at bar exists within the meaning of contract terms that were used. The parties did include a term purporting to describe the genetic makeup of the pigs to be sold: \u201cprogeny from a Newsham line.\u201d The fact that this particular phrase is ill-defined does not, and cannot, mean that the parties intended the contract to be silent as to that term. For that reason, and those outlined above, we hold that the trial court properly found the contract ambiguous.\nHaving found that the trial court properly determined the contract\u2019s ambiguity, it follows that the paroi evidence regarding the intent of the parties was not admitted in error. Rybicki, 246 Ill. App. 3d at 300-01, 615 N.E.2d at 1244. As we stated in Rybicki, \u201c \u2018[i]f the previous negotiations make it manifest in what sense [the parties] understood and used [the contract\u2019s] terms, they furnish the best definition to be applied in the construction of the contract itself.\u2019 \u201d Rybicki, 246 Ill. App. 3d at 299-300, 615 N.E.2d at 1243, quoting 17A Am. Jur. 2d Contracts \u00a7 403, at 429 (1991).\nMoreover, even if we assume, arguendo, that the paroi evidence was not properly considered, plaintiff has waived the issue. Evidence violating the paroi evidence rule can be considered if not objected to at trial. Dremco, Inc. v. Hartz Construction Co., 261 Ill. App. 3d 531, 534, 633 N.E.2d 884, 887 (1994). Further, even if the plaintiff had objected at trial to the introduction of paroi evidence, a party waives an objection where a ruling is not requested after the trial court fails to make one. In re Marriage of Pylawka, 277 Ill. App. 3d 728, 734, 661 N.E.2d 505, 510 (1996).\nHere, the record is devoid not only of plaintiffs objection to the introduction of paroi evidence, but also of any request by plaintiff for a dispositive ruling on the issue. Plaintiff even cross-examined several of defendant\u2019s witnesses as to the paroi understandings of the parties. If plaintiff had truly thought the evidence objectionable, why were the witnesses examined without a prior ruling from the court regarding the nature of their testimony? Thus, without any facts in the record demonstrating plaintiffs opposition to the paroi evidence, either by objection or request for ruling from the court, we are constrained to hold that plaintiff waived any objection to the paroi evidence.\nB. The Court\u2019s Construction of the Contract Was Not Against the Manifest Weight of the Evidence\nOnce a contract has been deemed ambiguous, its effect on the parties is a question of fact. Quake Construction, 141 Ill. 2d at 288-89, 565 N.E.2d at 994. In other words, while the question of ambiguity is one of law, the question of the effect of that ambiguity is one of fact. We will not disturb a trial court\u2019s finding of fact unless it is manifestly against the weight of the evidence, as that court is in a superior position to determine credibility, weigh evidence, and determine the preponderance thereof. Rybicki, 246 Ill. App. 3d at 301, 615 N.E.2d at 1244, citing Greene v. City of Chicago, 73 Ill. 2d 100, 110, 382 N.E.2d 1205, 1210 (1978).\nHere, we are presented with the trial court\u2019s finding that the contract was ambiguous and that \u201cat some point during the contract *** [the pigs] were going to be one hundred percent Newsham genetically.\u201d By this finding the trial court implied that the intent of the parties was to contract for the eventual sale of 100% Newsham genetic pigs. Since this determination is not against the manifest weight of the evidence, we agree.\nThe facts of the case remain undisputed that both parties were aware, at the time of the contract\u2019s formation, that plaintiffs herd was not 100% Newsham. Further, representatives of defendant acknowledged that the first several deliveries under the contract would not be fully Newsham, even acknowledging that the process of conversion might take up to one year. Nonetheless, both plaintiff and defendant seemed to agree that this move would be made. Certainly, defendant expected that the pigs would eventually become fully Newsham, a fact borne out at trial through the testimony of defendant\u2019s representatives. But more critically, Shields, the vice-president of plaintiff, admitted that, under the contract, plaintiff would begin developing 100% Newsham pigs:\n\u201cQ. And you said that it was envisioned, I think, by [plaintiff] and [defendant] that [plaintiff] would move towards 100 percent Newsham?\nA. That\u2019s correct.\nQ. That was the intent of the parties was [sic] was it not?\nA. That\u2019s exactly right.\u201d\nIn light of this trial testimony, we fail to see how plaintiff could have argued that a move to 100% Newsham genetics was not contemplated by the parties. The manifest weight of the evidence regarding the parties\u2019 intended definition of \u201cprogeny from a Newsham line\u201d indeed supports the trial court\u2019s construction of the contract. As such, we are disinclined to reverse such a finding.\nC. The Trial Court\u2019s Holding as to the Parties\u2019 Repudiation Was Against the Manifest Weight of the Evidence\nThe question then remains, was the trial court correct in its determination that both parties had repudiated the contract? Defendant argued that when it learned that plaintiff was producing its own gilts, in lieu of purchasing Newsham genetics, its subsequent repudiation was proper. According to defendant, plaintiffs prospective inability to fully perform, that is, to provide 100% Newsham pigs as required under the contract, gave defendant just cause for repudiating in August. Plaintiffs argument regarding any breach or repudiation was twofold. First, defendant\u2019s refusal to accept 300 of the 680 in the April shipment constituted a breach as to those pigs not accepted. Second, the defendant\u2019s unequivocal statement in August 1998, refusing to accept any more pigs, constituted a breach of the whole contract.\nPresented with these arguments, and the facts of the case, the trial court found that the case presented \u201ca situation where both parties repudiated the contract as opposed to either party breaching it.\u201d At most, the court found that there had been \u201ca breach with regard to one shipment in May.\u201d Nonetheless, the court found for neither party. Critical to this determination was the court\u2019s finding that plaintiff \u201cput itself in the position where it could not meet the contractual terms.\u201d According to the court, then, plaintiff repudiated the contract when it refused to proceed with the conversion plan. Consequently, when defendant learned of this situation in the summer of 1998, it was justified in repudiating the contract in August 1998.\nThe determination of which party to a contract breached is a question for the trier of fact, and its finding will not be disturbed unless it is against the manifest weight of the evidence. Wells v. Minor, 219 Ill. App. 3d 32, 43, 578 N.E.2d 1337, 1345 (1991); see also Rybicki, 246 Ill. App. 3d at 301, 615 N.E.2d at 1244. Based on such a standard, we find that the trial court erred in denying the plaintiffs claim for damages based upon the defendant\u2019s refusal to accept 300 of the 680 pigs in the April shipment. Further, we find that the trial court erred in holding that both parties repudiated the contract and reverse and remand for further proceedings.\nWhile not directly addressed by the parties, this case is readily resolved by reference to article 2 of the Uniform Commercial Code\u2014 Sales (Commercial Code) (810 ILCS 5/2\u2014101 through 2\u2014725 (West 1998)). Certainly, the pigs fall within the Commercial Code\u2019s definition of \u201cgoods.\u201d 810 ILCS 5/2\u2014105(1) (West 1998); see also 810 ILCS Ann. 5/2\u2014105(1), Uniform Commercial Code Comment 1, at 73-74 (SmithHurd 1993). Moreover, at trial, both parties acknowledged that their contract was governed by the Commercial Code. Specifically, both parties referenced Commercial Code sections regarding the computation of damages. We will thus address the parties\u2019 arguments within the Commercial Code\u2019s framework.\n1. The Trial Court Erred in Finding Against Plaintiff as to the March 1998 Delivery\nWe first address the trial court\u2019s finding that both parties had repudiated the contract insofar as it denied plaintiffs claim for damages arising out of the defendant\u2019s rejection of 300 of the 680 pigs delivered in April 1998. In so finding, the court appears to have wholly ignored plaintiffs legitimate claim for breach of the contract as to the April delivery, preferring to declare a repudiation of the entire contract. Since such a finding ignores the Commercial Code\u2019s provisions regarding seller\u2019s remedies for buyer\u2019s wrongful rejection, we reverse.\nQuite simply, section 2 \u2014 703 of the Commercial Code provides that, \u201c[w]here the buyer wrongfully rejects or revokes acceptance of goods *** or repudiates with respect to a part or the whole, then with respect to any goods directly affected *** the aggrieved seller may *** (d) resell and recover damages *** [or] (e) recover damages for non[ ] acceptance.\u201d 810 ILCS 5/2\u2014703 (West 1998). Further, comment 2 to section 2\u2014703 provides that \u201cbuyer\u2019s breach which occasions the use of the remedies under this section may involve only one lot or delivery of goods.\u201d 810 ILCS Ann. 5/2\u2014703, Uniform Commercial Code Comment 2, at 412 (Smith-Hurd 1993).\nHere, plaintiffs complaint sought damages not only for the rejected deliveries after the August 1998 repudiation by defendant, but also for the rejection of 300 of the 680 pigs in the April 24, 1998, delivery. The record indicates that defendant rejected these pigs because one of its subsequent purchasers did not desire their delivery. Yet the contract does not give defendant the right to reject a portion of a delivery in such a situation. Plaintiff had contracted to deliver 680 pigs, and it properly tendered that number. We fail to see how a rejection by defendant of 300 pigs in that delivery was not a breach. Thus, the manifest weight of the evidence does not support the trial court\u2019s conclusion that plaintiff should not recover damages for the April 24, 1998, delivery. Accordingly, we reverse the trial court\u2019s judgment as to that issue.\n2. The Manifest Weight of the Evidence Does Not Favor Defendant as to Plaintiff\u2019s Repudiation of the Whole Contract\nMore critically to the contract as a whole, the trial court found that the evidence indicated a repudiation of the contract by both parties. We disagree. Again, two sections of the Commercial Code are directly on point. First, the Commercial Code gives a promisee who suspects that the promisor will not perform the right to demand an assurance of performance. 810 ILCS 5/2\u2014609 (West 1998). That portion of the Commercial Code provides, in pertinent part that, \u201c[w]hen reasonable grounds for insecurity arise with respect to the performance of either party the other may in writing demand adequate assurance of due performance and until he receives such assurance may if commercially reasonable suspend any performance for which he has not already received the agreed return.\u201d 810 ILCS 5/2\u2014609 (West 1998).\nSecond, the Commercial Code\u2019s treatment of \u201canticipatory repudiation\u201d is particularly relevant. That section provides:\n\u201cWhen either party repudiates the contract with respect to a performance not yet due the loss of which will substantially impair the value of the contract to the other, the aggrieved party may[:]\n(a) for a commercially reasonable time await performance by the repudiating party; or\n(b) resort to any remedy for breach ***, even though he has notified the repudiating party that he would await the latter\u2019s performance and has urged retraction; and\n(c) in either case suspend his own performance or proceed in accordance with the provisions of this [ajrticle on the seller\u2019s right to identify goods to the contract notwithstanding breach or to salvage unfinished goods ***.\u201d 810 ILCS 5/2\u2014610 (West 1998).\nIn the case sub judice, both parties have claimed that their suspension of performance is based on reasonable grounds for insecurity created by the other party. For defendant, these \u201creasonable grounds for insecurity\u201d arose when defendant learned, through Dr. Eggers and Catlett, that plaintiff was no longer buying Newsham genetics but was attempting to make its own gilts. From plaintiffs perspective, the \u201creasonable grounds for insecurity\u201d were more explicit: defendant stated its own repudiation.\nThus, we are presented with two alleged repudiations and must determine the effect of either or both on the contract, with a deferential eye toward the trial court\u2019s finding that both parties repudiated. Clearly, defendant\u2019s statement, in August 1998, that it would no longer accept any pigs from plaintiff was a repudiation of the whole contract with regard to the remainder of performances not yet due from plaintiff. P.R.S. International, Inc. v. Shred Pax Corp., 184 Ill. 2d 224, 243, 703 N.E.2d 71, 80 (1998) (\u201ca buyer\u2019s statement of intent not to accept delivery of goods constitutes an anticipatory repudiation\u201d). Had this statement been the only exchange of information between the parties with regard to future performance, this would be a very easy case; defendant would be liable under section 2 \u2014 610 of the Commercial Code.\nHowever, the facts of the case also present plaintiffs statements to Dr. Eggers and Catlett regarding his unwillingness to purchase additional Newsham semen or gilts. Our task, then, is to determine whether this statement had any real effect on the parties\u2019 respective obligations. Defendant has argued that this statement constituted an unequivocal repudiation, such that defendant could suspend its own performance under the contract.\nWe disagree. Under the Commercial Code, repudiation results \u201cfrom action which reasonably indicates a rejection of the continuing obligation.\u201d 810 ILCS Ann. 5/2\u2014610, Uniform Commercial Code Comment 2, at 390 (Smith-Hurd 1993). The Commercial Code\u2019s concept of anticipatory repudiation focuses on two distinct types of conduct engaged in by a prospective repudiator. First, a repudiation may arise when the promisor, without justification, makes a statement that he cannot or will not perform. Second, one may repudiate by voluntarily putting it out of his power to perform as agreed. See Comment, The Uniform Commercial Code Section 2\u2014609: A Return to Certainty, 14 J. Marshall L. Rev. 113, 114-15 (1980); see also 1 White & Summers, Uniform Commercial Code \u00a7 6\u20142, at 288-93 (4th ed. 1995).\nBoth the Commercial Code and the common law have long recognized that, to rise to the level of a repudiation, a promisor\u2019s language must be sufficiently clear and distinct to be reasonably interpreted to mean that the promisor cannot or will not perform. See P.R.S. International, Inc., 184 Ill. 2d at 243, 703 N.E.2d at 80 (requiring a \u201cclear\u201d statement of intention not to perform); Bituminous Casualty Corp. v. Commercial Union Insurance Co., 273 Ill. App. 3d 923, 930, 652 N.E.2d 1192, 1197 (1995) (requiring a \u201cpositive and unequivocal manifestation of a party\u2019s intent not to render the performance promised\u201d); In re Marriage of Olsen, 124 Ill. 2d 19, 24, 528 N.E.2d 684, 686 (1988) (\u201c[djoubtful and indefinite statements that performance may or may not take place are not enough to constitute anticipatory repudiation\u201d).\nOn the facts of this case, then, we do not see how plaintiffs ambiguous statements about not purchasing any additional Newsham gilts or semen can be clear enough to constitute an unequivocal intention not to perform. We are persuaded in this determination by several factors. First, plaintiffs alleged statement was made through several third parties, Dr. Eggers and Catlett. Without a statement directly to defendant, we are not persuaded that plaintiff positively manifested an intention not to perform. Further, we do not see how plaintiffs statements about not purchasing any additional Newsham genetics and making its own gilts, on their face, constitute a repudiation of the contract. The record does not indicate what percentage of plaintiffs herd was fully Newsham at that point in the contract and is similarly silent as to whether plaintiff would have needed to be purchasing gilts to fully comply with the contract terms regarding genetic makeup of the pigs. Without more facts, we cannot agree that the manifest weight of the evidence favored either party, let alone defendant, on this issue.\nFurther persuading us is defendant\u2019s failure to request assurances under section 2 \u2014 609 of the Commercial Code. As noted above, that section permits a party to a contract to request adequate assurance of performance from the other party when reasonable grounds for insecurity arise with respect to his performance. 810 ILCS 5/2\u2014609(1) (West 1998); Althoff Industries, Inc. v. Elgin Medical Center, Inc., 95 Ill. App. 3d 517, 522, 420 N.E.2d 800, 804 (1981). Certainly, the statements of plaintiff, when they reached defendant, would have given defendant reasonable grounds for insecurity. Under the Commercial Code, then, defendant would have had the right to inquire of plaintiff, in writing, as to its intention to perform under the contract. But that was not done. The statements allegedly giving rise to defendant\u2019s insecurity were made in June and \u201cearly summer\u201d of 1998. According to the undisputed facts, defendant then accepted two more shipments of pigs, on or about July 3 and 31 of 1998.\nIf indeed defendant actually believed the value of the contract to be impaired by plaintiffs alleged prospective inability to perform, why did it accept two more deliveries and fail to request assurances, as was its right under the Commercial Code? While the Commercial Code permits a party to request such assurances, rather than requiring them as a condition precedent to recovery, defendant\u2019s failure to so request indicates that defendant initially might not have believed that plaintiff was repudiating the contract by not purchasing additional Newsham genetics. In all, we are not persuaded that the manifest weight of the evidence so favored defendant as to indicate a judgment against plaintiff. Rather, we conclude the evidence as to plaintiff s repudiation of the contract, prior to defendant\u2019s August 1998 repudiation, is inconclusive. We thus reverse and remand to the circuit court for further proceedings.\nIII. RESPONSE TO DISSENT\nContrary to the dissent, the argument upon which this decision is premised, that plaintiff did not repudiate the contract, was presented both to the trial court and to this court. The trial court specifically found that plaintiffs actions \u201cwould seem to be a repudiation of the contract by the plaintiff\u2019 and \u201cthis is a situation where both parties repudiated the contract.\u201d Plaintiffs brief in this court set out, in the points and authorities, the issue whether the trial court erred \u201cwhen it found that the plaintiff had repudiated the contract.\u201d\nThe dissent\u2019s complaint is not that the issue was not raised, but that the law, the appropriate section of the Commercial Code, was not cited. Under that approach, a reviewing court could never consider a case not cited to it by the parties, not even a controlling decision of the supreme court. The parties should not have the power to prevent our application of the law by failing to cite it, for whatever reason. In re Marriage of Rodriguez, 131 Ill. 2d 273, 545 N.E.2d 731 (1989), cited by the dissent (329 Ill. App. 3d at 320), refers to the failure to raise issues, the failure to raise questions, not to the failure to cite legal authority such as the Commercial Code. Because the question of plaintiff\u2019s repudiation was raised in the trial court, in fact was thoroughly litigated in the trial court, no argument can be made that the parties did not have the opportunity to present evidence on that question.\nIV CONCLUSION\nFor the reasons stated, we affirm the trial court\u2019s judgment in part, reverse in part, and remand for further proceedings.\nAffirmed in part, reversed in part, and remanded.\nMYERSCOUGH, J., concurs.", "type": "majority", "author": "JUSTICE COOK" }, { "text": "JUSTICE STEIGMANN,\ndissenting:\nThis is a difficult case, both factually and legally. The majority does a good job of trying to resolve these difficult issues, and in most instances, I would agree with the majority\u2019s decision. However, I do not agree with it in this case because the decision is premised on an argument that plaintiff-appellant has never made, either at the trial level or to this court. Accordingly, I respectfully dissent.\nThe majority decision rests upon an analysis of article 2 of the Commercial Code. 329 Ill. App. 3d at 315. However, as plaintiff (with commendable candor) conceded at oral argument, plaintiff never argued at the trial level the application of the Commercial Code to the facts of this case. In addition, on appeal to this court, plaintiff never argued for the application of the Commercial Code.\nIn plaintiffs initial brief to this court, plaintiff articulated the issues presented for review as follows: \u201cI. Did the trial court err in finding the contract ambiguous? II. Did the trial court err when it found that the plaintiff had repudiated the contract?\u201d Nowhere in plaintiffs initial brief does plaintiff mention or cite the Commercial Code.\nIn plaintiffs reply brief, plaintiff for the first time mentions the Commercial Code in support of plaintiffs claim that it never breached the contract. However, Supreme Court Rule 341(g) does not permit parties to raise new arguments or theories in reply briefs. Official Reports Advance Sheet No. 21 (October 17, 2001), R. 341(g), eff. October 1, 2001 (\u201cThe reply brief *** shall be confined strictly to replying to arguments presented in the brief of the appellee ***\u201d). Obviously, without such a rule, appellees would be deprived of the opportunity to respond to appellants\u2019 arguments.\nIn Rodriguez, 131 Ill. 2d at 276, 545 N.E.2d at 732, the primary question presented on appeal was whether the mother in a child custody dispute had standing to execute on a penal bond that the father posted to secure his visitation rights. The trial court entered an order permitting the mother to do so, but the appellate court reversed, holding that the mother did not have standing to execute on the bond because she was not named in the document. Rodriguez, 131 Ill. 2d at 278, 545 N.E.2d at 733. The supreme court reversed the appellate court, affirmed the circuit court\u2019s judgment, and held as follows:\n\u201cWe note initially that the record in this case reveals that no one at the trial level raised the issue of whether the mother had standing to execute on the bond. The general rule is that questions not raised in the trial court are deemed waived and cannot be argued for the first time on appeal. [Citations.] An exception to this waiver rule is found when an issue of public importance, decided by the appellate court but not by the trial court, is presented. Under these circumstances, this court may consider the issue. [Citation.] The appellate court in the case before us applied another exception to the waiver rule: when ignoring it will achieve a just result. [Citations.] The waiver rule should not be ignored, however, if the opposing party could have introduced evidence to contest or refute the assertions made on appeal, had he an opportunity to do so in the trial court.\u201d Rodriguez, 131 Ill. 2d at 279, 545 N.E.2d at 733.\nIn this case, we do not know what additional evidence or argument defendant might have presented at trial had plaintiff indicated that it was basing its claim upon the Commercial Code. Normally, a defendant in a civil action should be required to respond only to the evidence and arguments the plaintiff presents at the trial level. The majority\u2019s decision in this case essentially deprives defendant of its opportunity for a fair trial on the issues that this court has deemed dis-positive, and that decision is therefore contrary to Rodriguez.\nThe position of the appellant in Rodriguez was actually much stronger than the position of the appellant in the present case. At least the appellant in Rodriguez determined the correct issue to raise before taking its case to the appellate court. However, as earlier stated, plaintiff in this case not only failed to cite the Commercial Code to the trial court, but it also failed to cite it on appeal \u2014 at least until the reply brief.\nIt should also be noted that the first time the trial court will have called to its attention its supposed failure to properly apply provisions of the Commercial Code (even though none of those provisions were argued to that court) is when it receives this court\u2019s judgment. There are very few circumstances in which this court should ever countenance such a result, and this case is certainly not one of them. See In re Marriage of Harper, 191 Ill. App. 3d 245, 246, 547 N.E.2d 574, 575 (1989).\nThe majority mischaracterizes this dissent. My concern is not that plaintiff failed to cite the appropriate section of the Commercial Code, but that plaintiff failed to cite any section of the Commercial Code either at trial or on appeal. The majority rules in plaintiffs favor only after applying the Commercial Code to the facts of this case, something plaintiff has yet to do. The trial court\u2019s musings about repudiation as it delivered its lengthy ruling can hardly overcome plaintiffs failure to present to the court the claim that the Commercial Code applies to the facts of this case.\nWe should decide the cases as they come to us and address only those claims appellants raised below and in this court. The parties deserve no more and no less. That the facts before us might have supported a better claim (in our judgment) is beside the point. Because plaintiff should lose this appeal based on the only claims properly before us, I respectfully dissent.", "type": "dissent", "author": "JUSTICE STEIGMANN," } ], "attorneys": [ "Anne M. Martinkus (argued) and James A. Martinkus, both of Erwin, Martinkus & Cole, Ltd., of Champaign, for appellant.", "Brett A. Kepley (argued), of Rawles, O\u2019Byrne, Stanko & Kepley, P.C., of Champaign, for appellee." ], "corrections": "", "head_matter": "SHIELDS PORK PLUS, INC., Plaintiff-Appellant and Cross-Appellee, v. SWISS VALLEY AG SERVICE, Defendant-Appellee and Cross-Appellant.\nFourth District\nNo. 4\u201401\u20140239\nArgued October 24, 2001.\nOpinion filed April 16, 2002.\nRehearing denied May 17, 2002.\nSTEIGMANN, J., dissenting.\nAnne M. Martinkus (argued) and James A. Martinkus, both of Erwin, Martinkus & Cole, Ltd., of Champaign, for appellant.\nBrett A. Kepley (argued), of Rawles, O\u2019Byrne, Stanko & Kepley, P.C., of Champaign, for appellee." }, "file_name": "0305-01", "first_page_order": 323, "last_page_order": 340 }