{
  "id": 5367657,
  "name": "Carterville Coal Company, Appellee, v. Covey-Durham Coal Company, Appellant",
  "name_abbreviation": "Carterville Coal Co. v. Covey-Durham Coal Co.",
  "decision_date": "1914-05-04",
  "docket_number": "Gen. No. 18,843",
  "first_page": "163",
  "last_page": "183",
  "citations": [
    {
      "type": "official",
      "cite": "186 Ill. App. 163"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "164 Fed. 803",
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      "reporter": "F.",
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    {
      "cite": "90 C. C. A. 579",
      "category": "reporters:federal",
      "reporter": "C.C.A.",
      "opinion_index": 0
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    {
      "cite": "146 Ill. App. 257",
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      "reporter": "Ill. App.",
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  "last_updated": "2023-07-14T19:18:25.002075+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Carterville Coal Company, Appellee, v. Covey-Durham Coal Company, Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Brown\ndelivered the opinion of the court.\nAs we have said in the statement prefixed, this cause turned largely in the court below on the construction given to the agreement of March 10,1909. That agreement was and is treated in a puzzling and inconsistent manner by the parties to this controversy. The plaintiff sued for coal sold to the defendant and stated its claim in that way; hut it now says that it sold no coal to the defendant. It says in its argument: \u2018 \u2018 The plaintiff entered suit in the Municipal Court against defendant for the sum of $3,897.40, the proceeds due plaintiff for collections made by defendant as its agent from third parties. \u2019 \u2019\nIt certainly used inapt language in its \u201cstatement of claim,\u201d which answers to a declaration, to express this idea, and as no \u201ccollections\u201d of any \u201cproceeds\u201d were shown to have been made by \u201cthe defendant as the agent of the plaintiff,\u201d what warrant was there for the peremptory instruction to the jury under this theory?\nAgain the plaintiff says in its argument: \u201cIt was not intended to sell the coal to the company and to create the relation of debtor and creditor, but only to make the defendant herein the agent of the plaintiff to take orders for the coal and authorize the defendant herein as agent to collect and account for the proceeds of the coal.\u201d And again, that \u201cthe Court\u2019s review\u201d of the documents and dealings involved \u201cwill show that the Covey-Durham Coal Company was the agent of the Carterville Coal Company to sell its coal on commission within a certain exclusive territory and to collect for the coal which was delivered to said third persons, deduct its commissions for its services and remit its principal, the Carterville Coal Company, the amount as shown by the bills rendered to them at net prices, etc.\u201d\nThis theory of the plaintiff carried to its logical conclusion is on the present record as destructive to the plaintiff\u2019s right to recover as it is of the defendant\u2019s asserted set-off, if indeed it is not more so.\nOn the other hand, the defendant in insisting that each of the forty-nine orders and acceptances is a distinct, severable and separate contract, and that the contract of March 10,1909, is negligible, is urging a theory which if not fatal to, certainly renders very doubtful its right of set-off of the unliquidated damages which it is claiming as an aggregate amount for the combined defaults of the plaintiff.\nBut neither of the positions taken is sound. The contract of March 10, 1909, is something more than an agency contract, because whatever else it does or does not do, its words and the construction put upon them by both parties render the Covey-Durham Coal Company liable to the Carterville Coal Company for the coal shipped by the latter to third parties on the orders of the former. If it is a contract of agency it is a \u201cdel credere\u201d agreement, making a \u201cdel credere\u201d agency, which since Grove v. DuBois (1 T. R. 112) in 1785, when Lord Mansfield decided that such an agreement was enforceable and absolute, making the broker or agent liable to the principal in the first instance, without reference to \u201cproceeds collected,\u201d has been a very commonly used device in mercantile proceedings.\nOn the other hand, however inconsistent with the theory on which the \u201cStatement of Claim\u201d was originally made, the position of the plaintiff later taken was indubitably sound. It was that the contract of March 10, 1909, could not be left out of account in this litiga - tion; that the transaction and defaults, if they existed, in connection with the forty-nine orders introduced, could not be treated without reference to it, but that unless it could be shown that the March 10th contract had been abandoned, the entire scope and course of the business must be considered in connection with it, and that it must be held to have bound together and in a sense unified the transactions.\nOne of the errors strenuously insisted on by the defendant is that while under the \u201cpleadings\u201d the defendant was entitled to open and close the case, it was denied that right. It would seem on the authority of the cases cited in defendant\u2019s argument, so far as an analogy can be traced between the more informal proceedings and practice of the Municipal Court and the practice and pleadings at common law, to have merit in its claim; but we hold the error, if it was committed, too technical and really immaterial to warrant a reversal on that ground. We should not deem it worth while even thus briefly to allude to it if it were not that the raising of the question and the insistence on it emphasize a criticism we feel disposed to make of tne conduct of the case hitherto, which we hope will not apply to the new trial which, for reasons hereinafter stated, we feel compelled to order. Too much attention was paid to manoeuvring for position and too great insistence made on the exclusion of evidence which might have thrown light on the really vital questions at issue, namely: What did the contract of March 10, 1909, mean in the minds of the parties who made it? Was it broken? If it was, by whom first? Also, if it was so broken first by the plaintiff, what damages resulted to the defendant?\nThe agreement in question is said by the defendant (a) To be no contract because wanting in mutuality. (b) If a contract, then abandoned by the plaintiff, in the bringing of this suit \u201cfor goods sold and delivered.\u201d (c) If a contract, then even if the form of the suit did not estop the plaintiff from insisting on it, yet asserted by the defendant to have been abandoned by both parties before the transactions which are sued for herein, (d) If a contract and not abandoned, then unambiguously a contract of purchase and sale, (e) If a contract and ambiguous, then to be construed by and in the light of the intention of the parties as expressed by the utterances of their representatives and by their acts under it.\nOf these propositions we find no difficulty in negativing the first two (a and b) and the fourth (d). We think that in what was expressed and implied in the document of March 10, 1909, there was a valid contract ; and although the plaintiff took a strange course, to our minds, in \u201cstating his case,\u201d there came out in the procedure, before the actual trial began, the agreement prior to the \u201cdeliveries;\u201d and the difference between a liability on a del credere agency and on a direct purchase is not, we must hope, so great that under the reformed and summary practice of the Municipal Court, designed and supposed by many to be so great an improvement on the forms of the common law, a mistake in the form of the \u201cstatement\u201d is irremediable.\nNor do we need to advert to the third proposition of the defendant (c) except to say that while there is no evidence whatever now in the record to sustain it, and much that would seem definitely to negative it, the defendant was, by what we hold to be an erroneous ruling on evidence, prevented from introducing alleged admissions of the plaintiff\u2019s president and managing agent, and we are unwilling unnecessarily therefore to foreclose the defendant\u2019s right to assert hereafter anything which it is conceivably possible, even if improbable, might be proven by such admissions. But with the fifth proposition of defendant (e) we can see no reason to disagree, and if it is correct we think that the court below seriously erred in excluding the evidence which it was stated would show the construction of the contract by the plaintiff.\nThat it was ambiguous and in a sense designedly so, is in our opinion clear. It looks to us like a del credere agency contract rather than one of purchase and sale. It differs from the one discussed in Finch & Co. v. Zenith Furnace Co., 146 Ill. App. 257, but it is \u201clike a mermaid, \u201d as was that. The parts are changed in position and the result is different. The quotation used in the Zenith Go. case might be inverted perhaps in speaking of it, and we might say \u201cprima pristis, postrema hominis facies!\u201d But it is one of those contracts anent which Mr. Justice Burton, now of the U. S. Supreme Court, when sitting in the U. S. Circuit Court of Appeals for the Sixth Circuit, justly remarked: \u201cHardly any two contracts raising the question of sale or agency are so near alike as to make an opinion construing one an authority in another. It matters little what the parties call such agreements. .Whether the result is a sale or an agency must depend upon the meaning and intent of the instrument as a whole.\u201d Miles Medical Co. v. Park & Sons Co., 90 C. C. A. 579, 164 Fed. 803.\nOn such contracts evidence as to how by word or deed they have been construed by the parties to them is material and admissible. A corporation must act and speak through its officers and agents; and we think that the court below erred in rejecting the testimony concerning alleged statements of the plaintiff\u2019s president and business manager, and then instructing the jury for the plaintiff. We think it very doubtful at best whether the deposition taken in St. Louis on a stipulation ought not to have been sent to the clerk of the court. We do not think that the cases cited by the plaintiff\u2019s counsel go to the length of holding, as they urge, that it might be withheld from the clerk and consequently altogether withheld from being read by the defendant at the trial. But even if the defendant had no right to the filing or reading of the deposition, it had a right to prove anything in the nature of admissions made by Burr for his Company concerning the intention and meaning of the contract of March 10th which it could prove by a witness who heard them made. It made no difference that these admissions, if there were any, were taken down and sworn to after-wards. That they were made, and especially to or in the presence of a representative of the defendant, was the important thing in this phase of the matter. The contention of plaintiff, apart from the alleged incom.petency of Mr. Burr to admit anything for the Company, seems to be that the offered witness was only forbidden to say what he knew only from reading the deposition, but this is not what the record shows. The court having refused to require the deposition to be filed, or to allow a carbon copy to be read, erred in ruling that as a consequence no oral testimony could be heard of anything which Burr said while giving his deposition and which made a part of said deposition. This was a non sequitur.\nThat Burr\u2019s alleged 11 admissions\u2019\u2019 may not be conclusive when received, that the court may perhaps after they are heard still feel compelled to rule that the construction of the agreement is for the court, is possible; but it was error to exclude the testimony without hearing and considering it, and because of that error an instructed verdict cannot be allowed to stand.\nThere is, however, another serious error in our opinion which as imperatively requires reversal. We do not think the court, while holding, as it evidently did, the contract of March 10th to be one of a del credere agency (a conclusion which on the record as it now stands seems to us a correct one), should have stricken out and refused all evidence on the clause in the defendant\u2019s \u20181 Amended Statement of Set-off and Counterclaim,\u201d filed July 10,1911, which alleged damages to its business by reason of the defaults of the plaintiff in its relations with it.\nIf the agreement of March 10th is on another trial held to be abandoned or to be no contract or to be a contract simply of purchase and sale, or if in any form the forty-nine orders, acceptances and partial deliveries are held to be severable, separate and distinct transactions, we do not wish to be understood hereby as laying down any rule of damages to be applied; but if the said agreement is held again to constitute a del credere agency, and to have bound the transactions involved in this cause together, then, in the interest of speeding the cause, we state the following to be our opinion as to the evidence which would be competent to prove damages on the claim of set-off, if a default in its obligations rendering the plaintiff liable on the set-off should be first proven:\nFirst. Evidence of what direct expenditure the defendant had been obliged to make or loss to stand in filling any of the orders on which it had made itself liable, or in paying damages for a default therein. Of course in this item only those sums could be allowed which had been actually expended or lost because of some legal liability under which the defendant had come. ;\nSecond. Evidence of the amount of \u201ccommissions\u201d provided for by the agreement of March 10,1909, which the defendant had not received but would have received if the plaintiff had not so indefensibly defaulted.\nThird. Evidence of any further direct pecuniary damage to the defendant by reason of loss of business or of business standing through the defaults of the plaintiff.\nConjectural, remote, speculative damages could not be recovered; but if the defendant offers to prove damages that are the direct and natural result of the breach and are not problematical, he should be allowed to try to do it, whatever the difficulty it may be reasonably foreseen he will have in succeeding. By the ruling of the court striking out the clause in question from the amended statement of claim, the defendant would have been foreclosed from any such attempt, however the other questions in the case had been decided. It will be seen that we do not agree with either party in the matter of the rule of damages on the set-off, if the plaintiff should be found liable for a set-off; but we do not think it necessary to discuss further the question or to attempt to show in detail the fallacy of the \u201cmarket price\u201d theory put forward by the defendant.\nThere is but one other matter we think it necessary to mention. The plaintiff makes much of the contract of March 10,1909, making the deliveries subject among other conditions to \u201ccar supply.\u201d It did make them so subject, but if a default or delay in deliveries was attributable to lack of \u201ccar supply,\u201d it was for the plaintiff so to prove, and to show self-serving letters of the plaintiff stating that a scarcity existed is manifestly not sufficient. We think, moreover, that evidence is competent as tending and aiding to construe the contract of the custom of the coal district involved in these transactions concerning the furnishing of cars as between the plaintiff and defendant. We speak of this because the defendant says in its argument that there was testimony to such a custom, and the plaintiff says it was stricken out. Deference to the record shows it at least very doubtful if the statement that there was a custom as described was stricken out. In any event, we think evidence of a custom, if it exists, competent, as we have said.\nThe judgment of the Municipal Court is reversed and the cause remanded to that court.\nReversed and remanded.",
        "type": "majority",
        "author": "Mr. Justice Brown"
      }
    ],
    "attorneys": [
      "Runnells, Burry & Johnstone, for appellant.",
      "O\u2019Bryan & Marshall and Judson, Green & Henry, for appellee.-"
    ],
    "corrections": "",
    "head_matter": "Carterville Coal Company, Appellee, v. Covey-Durham Coal Company, Appellant.\nGen. No. 18,843.\n1. Municipal Court of Chicago, \u00a7 13 \u2014when form, of statement of claim not irremediable. In an action brought in the Municipal Court on a statement of claim for goods \u201csold and delivered,\u201d where it appeared before the actual trial that the suit was based on a del credere agency contract, held that the difference between a liability on del credere agency and on a direct purchase was not so great that under the reformed and summary practice in the Municipal Court a mistake in the form of the \u201cstatement\u201d was irremediable.\n2. Contracts, \u00a7 377 \u2014when testimony as to admissions of deponent in unfiled deposition admissible to construe contract. In an action by a coal company for coal sold and delivered to another coal company, where a contract between the parties was ambiguous as to whether it was a contract for the purchase and sale of coal or a del credere agency contract, and the court refused to require the plaintiff to file a deposition of the president of the plaintiff Company, held that the court erred in ruling that the defendant could not prove anything in the nature of an admission made by such officer of the plaintiff Company concerning the intention and meaning of the contract which could be proved by a witness who heard them made.\n3. Contracts, \u00a7 12 \u2014when not wanting in mutuality. A contract between a coal company and another coal company in which the former agreed to furnish the latter with coal, held not wanting in mutuality.\n4. Depositions, \u00a7 28 \u2014when party denied right to have deposition filed may introduce evidence of deponent\u2019s admissions. Where the court refuses to require a deposition of a person to he filed or to allow a carbon copy thereof to be read, a ruling that in consequence thereof no oral testimony could he heard of anything which such person said while giving such deposition and which was made a part of the deposition, held erroneous.\n5. Factors, \u00a7 26 \u2014when exclusion of evidence of damages ta factor\u2019s business is error. In an action by a coal company against another coal company where the contract between the parties was held to constitute a del credere agency, action of the trial court in striking out and refusing all evidence to support a counterclaim alleging damages to defendant\u2019s business by reason of the defaults of plaintiff in furnishing coal, held reversible error.\n6. Factors, \u00a7 26 \u2014elements of damages provable on counterclaim for breach of contract by principal to furnish coal. In an action to recover for coal sold and delivered where the agreement constitutes a del credere agency, certain elements of damages held proper to prove on a claim of set-off.\n7. Customs and usages, \u00a7 17 \u2014when evidence of custom competent in construing contract. Where a contract for the sale and delivery of coal exempts the seller from liability to furnish coal from lack of \u201ccar supply,\u201d evidence of a custom of the coal district involved in the transactions concerning the furnishing of cars, held competent to aid in construing the contract.\n8. Trial, \u00a7 53 \u2014right to open and close. Refusal of court to allow the defendant to open and close the case, held too technical and immaterial to warrant a reversal, even if it was error.\nAppeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.\nHeard in this court at the October term, 1912.\nReversed and remanded.\nOpinion filed May 4, 1914.\nStatement by the Court. This is an appeal from a judgment rendered in a first-class case by the Municipal Court of Chicago. The judgment was in favor of the appellee, the Carterville Coal Company, plaintiff below, against the Covey-Durham Coal Company, defendant below and appellant in this court. The amount of it was $3,919.54. The judgment was rendered on the verdict of a jury, but the jury were instructed by the court at the conclusion of all the evidence to find the issues for the plaintiff and assess the damages at the sum for which the judgment was rendered.\nThe pleadings and proceedings in the canse took the following course:\nApril 5, 1911, the plaintiff filed in the Municipal Court of Chicago a praecipe to the summons in. a snit in assumpsit, setting the damages at $5,000, and with it filed a statement and affidavit of claim. The statement of claim was that the claim was \u201cfor a balance due plaintiff from defendant in the sum of $3,897.40 for coal sold defendant on the dates and in the amounts\u201d set forth in the statement, which contained between one and two hundred items of varying amounts, the dates running from August 3, 1909, to March 31, 1910. The total amount of the items was $11,765.41, but various credits of cash, with two small allowances also shown in the account, reduce the balance asserted to be due to $3,897.40. The affidavit is by one of the attorneys for the plaintiff and declares the nature of plaintiff\u2019s demand to be \u201cfor coal sold defendant by plaintiff.\u201d May 22, 1911, after the appearance of defendant, the plaintiff filed an amended statement and affidavit of claim, again stating that the claim was for 11 a balance due plaintiff from defendant for coal sold defendant by plaintiff,\u201d but giving in the account appended descriptions of cars, grade of coal, net weight and rate per ton, not given in the first statement, and making the snm of the items of charges slightly less and that of the credits slightly more, so that the balance was computed at $3,787.70. This amount another of the attorneys for the plaintiff swore in the accompanying affidavit was due to the plaintiff from defendant \u201cfor coal sold defendant by the plaintiff\u201d\nThe defendant thereupon, June 7, 1911, by its secretary, filed an affidavit of defense, in which the affiant first asserts that \u201che verily believes that the defendant has a good defense to this suit upon the merits to the whole of the plaintiff\u2019s demand,\u201d and then describes the nature of the defense by averring that the plaintiff cannot prosecute a suit for coal sold the defendant by the plaintiff because, before the date that the payment for coal delivered would have been due, the plaintiff was in default on the same contracts in the delivery of the coal, which default still continues. The nature and amount of the default the affiant says is set out in the defendant\u2019s statement of set-off filed with the affidavit. He further sets out alleged mistakes, clerical and otherwise, in the plaintiff\u2019s statement of claim amounting to $237.20, and concludes:\n\u201cAffiant further avers that on April 5, 1910, and subsequent dates, defendant offered to allow the amount of plaintiff\u2019s claim as herein corrected against defendant\u2019s claim of damages as is set out in defendant\u2019s statement of counterclaim and set-off filed herewith, and defendant now sets up as a further defense against plaintiff\u2019s claim its counterclaim and set-off filed herewith and (should the Court hold that plaintiff\u2019s claim is a valid claim) defendant prays judgment for the balance due in its favor. \u2019 \u2019\nThe \u201cstatement of set-off and counterclaim\u201d filed with said affidavit sets up \u201cdamages for failure by plaintiff to deliver coal according to its contracts with' defendant,\u201d and proceeds with five specified items of failure to deliver coal amounting in the aggregate to about 9,000 tons and damages aggregating $11,530.80. The statement says that because of the failure of plaintiff to deliver the coal it became necessary for the defendant to purchase coal at prices more than the contract price, and that the defendant claims as damages the difference between the contract price and the market price at the time the coal should have been delivered. The statement concludes with an offer to give the plaintiff credit for its claim of $3,603.16 on the claim of defendant.\nAttached to this statement were another affidavit of the secretary of the defendant, describing the defendant\u2019s demand to be \u201cfor failure to furnish coal as above set out according to contracts,\u201d and forty-nine pairs of documents which in form and in general purport are alike, except that they all differ in the dates, numbers, names of consignee or consignees, destination, amount of coal to be skipped, etc. One of these pairs as illustrating them all is given here to make clear their nature and the controversy concerning their construction in this case:\n\u201cJ. P. Covey, Pres. R. W. Durham, Secy.\nCOVEY-DURHAM COAT, CO.\n215 Dearborn Street.\nTelephone\nHarrison 3047. Chicago, May 24, 1909.\nOrder No. 5566.\nCarterville Coal Co.,\nSt. Louis, Mo.\nGentlemen:\nPlease enter the following order and acknowledge receipt of same on attached slip:\nCars to be 40 tons or less. Ship in equal monthly quantities Sept. 1st, 09 to March 1st, 1910.\nYours truly,\nCovey-Durham Coal Co.,\nBy R. W. Durham.\u201d\nThe \u201cattached slip\u201d was:\n\u201cSt. Louis, May 26, 1909.\nCovey-Durham Coal Co.,\nChicago, 111.\nGentlemen:\nWe are in receipt of your order No. 5566 of 5-24-09, and have entered same on our books for shipment as directed.\n10 cars 6\" Lump or 3x6 egg for Z. K. Hoag, Iowa Falls, Ia.\nYours truly,\nCarterville Coal Co.\u201d\nThe slip was printed except in the portions above underlined.\nJuly 10, 1911, the defendant, by leave of court, amended this \u201cStatement of Set-off and Counterclaim\u201d by inserting a detailed statement of the failures to ship in relation to each of the forty-nine orders. Thus, for example, as to the order above specified, the statement as amended set forth:\nthus alleging a default in the shipment of seven of the ten cars ordered for Z. K. Hoag.\nThe statement as amended stated that the tonnage was estimated at forty tons per car.\nThe following paragraph was also added to the statement by the amendment:\n\u201cAs a further item of damage defendant claims damage for loss of business and custom. For many years defendant had been engaged in buying and selling coal; defendant had always promptly filled its contracts with its customers, all of which plaintiff well knew. The defendant, relying upon its contracts with the plaintiff, made contracts for the sale of coal so purchased from plaintiff. Defendant depended upon the plaintiff\u2019s fulfilment of its contracts for its supply of coal with which to carry out its contracts with its customers, and because of plaintiff\u2019s breach of its contracts as hereinbefore set out, defendant was unable to fill its contracts with its purchasers and thereby lost several of its customers and thereby has been greatly damaged in its business. Because of plaintiff\u2019s repeated promises to furnish the coal contracted for, defendant did not buy other coal in the market, and as a result of plaintiff\u2019s breach of contract defendant lost its reputation for prompt performance of its contracts. Defendant notified plaintiff that unless the plaintiff performed its contracts with defendant, defendant\u2019s business would be greatly damaged, and plaintiff well knew that defendant\u2019s business would be so damaged. Defendant claims therefore an additional counterclaim of ten thousand ($10,000) dollars for damage to its business by reason of plaintiff\u2019s failure to perform its contracts as is herein alleged.\u201d\nAnother amendment by defendant of the set-off claim made the statement a little more detailed, but without changing its essential character. To the statement as finally amended and filed on September 22, 1911, the secretary of the defendant appended his affidavit that there was due to the defendant from the plaintiff for failure to furnish coal according to the contracts, $7,966.31, after allowing all credits and also additional unliquidated damages for Josses to business for such failure.\nOn the same day, September 22, 1911, the court on motion of the plaintiff ordered the \u201cadditional counterclaim\u201d of $10,000, or of unliquidated damages, for \u201cdamage to business\u201d disallowed and stricken out. December 1,1911, the court denied a motion of the plaintiff to strike the whole of defendant\u2019s claim of set-off from the files and granted leave to the plaintiff to file an affidavit of merits of defense to said claim.\nDecember 15,1911, the president of the plaintiff, the Carterville Coal Company, filed an affidavit in behalf of the Company, in which he asserted that the defense of the plaintiff to the amended set-off and counterclaim filed by the defendant was that on March 10, 1909, the plaintiff entered into a contract with the defendant, the Covey-Durham Coal Company, to sell coal for the plaintiff in certain described territory solely on a commission basis. The affidavit sets out the contract, and as the present controversy and the rulings of the court below turn on that contract, we give it in full:\n\u201cSt. Louis, Mo., March 10,1909.\nCovey-Durham Coal Co.,\nChicago, Ill.\nGentlemen: We hereby propose to give you the exclusive sale of our coal in the following territory and under the following conditions from March 31, 1909, until March 31,1910.\nTerritory.\nOn all lines of railroad in Illinois north of Centralia except in the City of Chicago and within a radius of fifty miles.\nIllinois Central E. E. in Wisconsin.\nIllinois Central E. E. in Iowa as far west as Fort Dodge, la.\nConditions.\nPrices to be agreed on from time to time and commissions to be allowed on the following basis:\nLump, Egg, Mine Bun and No. 1 Nut.\nSold at $1.25 per ton or less, com. to be 10c per ton.\n\u201c \u201c 1.30 to $1.40 per ton, com. to be 12% \u201c \u201c\n\u201c \u201c 1.45 to 1.70 \u201c \u201c \u201c \u201c \u201c 15 \u201c \u201c\n\u201c \u201c 1.75 to 2.00 \u201c \u201c \u201c \u201c \u201c 20 \u201c \u201c\n\u201c \u201c 2.10 to 2.50 \u201c \u201c \u201c \u201c \u201c 25 \u201c \u201c\nScreenings No. 2 Nut and Pea.\nSold at $1.00 per ton or less, com. to be 10c per ton.\nSold at 1.05 per ton or over, com. to be 10% of selling price.\nSlack sold at .50 per ton or less, com. to be 10c per ton.\nSlack sold at .65 to .75 per ton, com. to be 12% per ton\nSlack sold at .80 to 1.00 per ton, com to be 15 per ton. and all sizes not mentioned above and for coal sold at higher prices than named herein commissions allowed shall be at least 10% of prices coal is sold at F. O. B. mine.\nWe are to ship all coal to consignees direct and render bills to you at net prices and payments are to be made monthly.\nThe above is subject to strikes and car supply.\nTours truly,\nCarterville Coal Co.\nH. B. Burr.\nAccepted March 10, 1909.\nCovey-Durham Coal Co.,\nB. W. Durham, Secy.\u201d\nAfter reciting the contract as above, the affiant says that defendant cannot prosecute its counterclaim because it had broken the contract and was in default in payment for coal already shipped and delivered to its consignees before the date on which the coal mentioned in the counterclaim was to have been shipped and delivered; that the counterclaim cannot be a set-off under plaintiff\u2019s statement of claim because it is \u201cfor unliquidated damages arising out of the purchase and sale of a commodity at different dates, to different people, for different amounts;\u201d that the orders described by defendant in its set-off are not contracts, but \u201care only memoranda,\u201d and as well as the receipts attached were all sent only \u201cunder the terms and conditions of the contract of March 10, 1909;\u201d that the said contract provided that the shipments were to be made subject to car supply and that the plaintiff shipped all the coal ordered under the contract to the consignees named as far as possible with the car supply furnished the plaintiff, and that if there was any failure to deliver any of the coal described in defendant\u2019s amended set-off, it was by reason of plaintiff\u2019s inability to secure cars in which to make such shipments to the consignee indicated by the defendant; and that the plaintiff is informed and believes that the defendant did not purchase any coal at the market price during January and February, 1910, and was not damaged in any particular by any failure of the plaintiff to deliver coal to it.\nAt the trial of the cause, which began on May 27, 1912, the defendant first asked for an order directing the plaintiff to file a deposition of H. B. Burr, the president of the plaintiff Company, which had been taken at St. Louis at the instance of the plaintiff under a stipulation and sent to the plaintiff\u2019s counsel in Chicago but not filed in court. This motion was reserved temporarily but afterwards denied, and during the progress of the trial all offers or attempts, of which there were many, to prove certain admissions alleged to have been made by Burr in the said depositions were overruled.\nThe counsel for the defense then moved that he be allowed the opening and close in the trial. This motion was denied. All these rulings were excepted to and are complained of as erroneous.\nThe answers filed by defendant to certain interrogatories propounded to it under the Municipal Court Act were offered by plaintiff and admitted over the objection of the defendant, and in answer to the interrogatory, \u201cDid the Covey-Durham Company through its duly authorized agent or agents enter into the following agreement with the Carterville Coal Company\u201d (then reciting the document dated March 10, 1909, before set forth as a part of the affidavit of the President of the Carterville Coal Company filed December 16, 1911), the answer was \u201cTes.\u201d The admission of this document was especially objected to. Other answers to the interrogatories practically admitted that the coal set out in the plaintiff\u2019s statement of claim was shipped by the plaintiff at the request of the defendant, but it was said; however, that mistakes made the plaintiff\u2019s claim founded on the said shipments $237.20 too large, and \u201cthat all the coal requested by defendant to be shipped was not shipped.\u201d\nThe plaintiff admitted the corrections pointed out by defendant and introduced evidence that the interest on $3,603.13, which-it maintained was due to it for two years and one month at five per cent, was $369.04, and asked judgment for $3,972.17, which was reduced when the final instruction was requested to $3,919.54, for which the judgment was eventually given.\nThe plaintiff having rested its case, the defendant introduced in evidence all the orders sent by the Covey-Durham Coal Company to the Carterville Coal Company during 1909 and 1910, with the receipts, acknowledgments or acceptances thereof, as set out in the defendant\u2019s set-off and counterclaim above recited, and the plaintiff, \u201csubject to the objection that the agent is estopped to introduce such evidence,\u201d admitted that it failed to ship coal as set out in defendant\u2019s amended statement of set-off and counterclaim, \u2018 \u2018 owing, as it claimed, to inadequate car supplies.\u201d\nCertain postal cards were introduced by the defendant from the Carterville Coal Company to the Covey-Durham Coal Company, showing shipments of certain portions of the coal ordered under the forty-nine orders previously admitted to have been given and a great deal of correspondence between the two Companies to the suit, on the one side urging more speedy shipment of the coal to the consignees named in the forty-nine orders, and complaining of delays, and on the other, laying the fault to the short car supply, expressing hope of being able to be more prompt in the future and after August asking prompter or larger remittances on account of the coal shipped.\nThe differences between the two Companies reached a climax by April 5, 1910, and a letter of that date from the Covey-Durham Company to the Carterville Company stated the claim of the Covey-Durham Company to be that because of the failure of the Carter-ville Company to furnish the coal agreed on, at the times agreed on, the Covey-Durham Company had filled orders for about 5,000 tons of coal, which cost them or was worth to them $4,500 more than the price for which the Carterville Coal Company had agreed to furnish it, and on about 4,000 other tons which they had contracted to have delivered, but which orders they had not been obliged to fill, they had lost their commissions of at least ten cents a ton; that they ha,d suffered a large amount of damage (at least $4,000) for the injury to their business by their inability to keep their promises through the default of the Carterville Coal Company, and that they were entitled also to commissions in accordance with the \u201ccontract of March 10, 1909\u201d on certain coal shipped by the Carterville Coal Company on orders of other persons into the territory where, by the said contract, the Convey-Durham Coal Company was to have the exclusive sale.\nIn a subsequent letter of the Carterville Coal Company introduced in evidence, the claim for commissions on a consignment of coal made to a third party in the said territory without the intervention of the Covey-Durham Company was admitted, but no further claim.\nBesides the evidence heretofore alluded to, it was shown that some of the cars ordered to be shipped on some of the forty-nine orders which were not shipped at the times specified in the orders were subsequently shipped and received and accepted by the consignees, and subject to \u201ca general objection for immateriality, which was reserved by the Court,\u201d evidence offered by the defendant was received of the market .prices of six inch lump coal f. o. b. the mine in the Carterville locality in the different months and parts of months from July, 1909, to March, 1910.\nThe defendant also attempted to introduce a notice served on defendant during the pendency of the suit, signed by plaintiff\u2019s attorney, setting forth the agreement of March 10, 1909, and giving notice of a motion to strike the defendant\u2019s set-off and counterclaim from the files for the reasons:\n\u201cFirst. That there is a want of mutuality in the contract between the plaintiff and defendant sufficient to found the defendant\u2019s set-off and counterclaim upon.\nSecond. Because the set-off and counterclaim of defendant is for unliquidated damages arising out of independent contracts for the sale and purchase of commodity.\nThird. Because the contract between said plaintiff and defendant is severable and consists of several distinct and separate items, and no set-off or claim can lie in law for the above reasons.\u201d\nThis evidence, which was apparently offered for the purpose of showing an admission by the plaintiff that the transactions in question were not governed by the document of March 10, 1909, was on objection by the plaintiff excluded.\nThe court on motion of the plaintiff after the conclusion of the evidence instructed the jury to find the issues in favor of the plaintiff and to assess plaintiff\u2019s damages at the sum of $3,919.54. That verdict having been returned, the court, after a motion for a new trial and a motion in arrest of judgment had been overruled, entered judgment upon it for the amount named. The defendant appealed and in this court has assigned as error and insists upon these matters:\nThat the court erred in refusing the defendant the opening and closing of the case;\nThat it erred in the admission of improper evidence, especially that of the agreement of March 10,1909;\nThat it erred in striking out the paragraph of defendant\u2019s statement and counterclaim, which asserted unliquidated damages to the defendant\u2019s business by the default of the plaintiff;\nThat it erred in the exclusion of proper evidence\u2014\u25a0 notably in the exclusion of the testimony of the president of the plaintiff Company taken at St. Louis on a stipulation, which deposition, or a copy thereof, or secondary evidence of what was said by the witness therein, should have been admitted;\nThat it erred in instructing the jury for the plaintiff, as requested, and at least in including interest in the amount of the plaintiff\u2019s claim.\nRunnells, Burry & Johnstone, for appellant.\nO\u2019Bryan & Marshall and Judson, Green & Henry, for appellee.-\nSee Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number."
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  "file_name": "0163-01",
  "first_page_order": 209,
  "last_page_order": 229
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