{ "id": 5121944, "name": "William Summers et al. v. Hibbard, Spencer, Bartlett & Co.", "name_abbreviation": "Summers v. Hibbard, Spencer, Bartlett & Co.", "decision_date": "1893-07-12", "docket_number": "", "first_page": "381", "last_page": "390", "citations": [ { "type": "official", "cite": "50 Ill. App. 381" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "86 Ill. 15", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "61 Ill. 343", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2460125 ], "opinion_index": -1, "case_paths": [ "/ill/61/0343-01" ] }, { "cite": "50 Ill. 491", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2606355 ], "opinion_index": -1, "case_paths": [ "/ill/50/0491-01" ] }, { "cite": "21 Ill. 218", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "19 Brad. 610", "category": "reporters:state", "reporter": "Bradf.", "opinion_index": -1 }, { "cite": "86 Ill. 73", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "96 Ill. 503", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2718146 ], "opinion_index": -1, "case_paths": [ "/ill/96/0503-01" ] }, { "cite": "29 Ill. 410", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "30 Ill. App. 297", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2420062 ], "opinion_index": -1, "case_paths": [ "/ill-app/30/0297-01" ] }, { "cite": "111 Ill. 487", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 828314 ], "opinion_index": -1, "case_paths": [ "/ill/111/0487-01" ] }, { "cite": "60 N. Y. 491", "category": "reporters:state", "reporter": "N.Y.", "opinion_index": -1 }, { "cite": "47 N. Y. 62", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 509592 ], "opinion_index": -1, "case_paths": [ "/ny/47/0062-01" ] }, { "cite": "45 Iowa, 470", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2312816 ], "opinion_index": -1, "case_paths": [ "/iowa/45/0470-01" ] }, { "cite": "27 Ill. App. 410", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4950046 ], "opinion_index": 0, "case_paths": [ "/ill-app/27/0410-01" ] }, { "cite": "75 Ill. 246", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2700241 ], "opinion_index": 0, "case_paths": [ "/ill/75/0246-01" ] }, { "cite": "57 Ill. 507", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 } ], "analysis": { "cardinality": 763, "char_count": 16270, "ocr_confidence": 0.472, "pagerank": { "raw": 3.4941728328347896e-07, "percentile": 0.8824215234170023 }, "sha256": "f9865f4416b57be28524122517b72e480f39849905f6939ef514e3195db00dda", "simhash": "1:34f5c4bd0adcd3ce", "word_count": 2801 }, "last_updated": "2023-07-14T15:57:42.711650+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "William Summers et al. v. Hibbard, Spencer, Bartlett & Co." ], "opinions": [ { "text": "Opinion of the Court,\nWaterman, J.\nOn March 1, 1889, the appellee Avrote to the appellants as follows:\n\u201cWm. G. Hubbard, A. O. Bartlett, G. H. Conover, E. G. Clark, Pres, and Treas. Vice-Pres. Sec\u2019y. Cashier.\nHibbard, Spencer, Bartlett & Co.,\nLake and Wabash. directors :\nWm. G. Hibbard, A. C. Bartlett, James W. Hye, C. H. Conover,\nE. G. Clark.\nSummers Bros. & Co., Struthers, Ohio.\nGentlemen : We are thinking of buying 5,000 to 10,000 bundles common sheet iron for delivery in equal quantities in the months of April, May, June, July and August, and Avould be pleased to have your best price on same. We shall want all numbers from 16 to 27, but at least three-fourths of the lot 26 and 27. Hoping to hear from you soon with a low price.\nTours truly,\nHibbard, Spencer, Bartlett & Co.\u201d\nA few days thereafter _ appellee received the folloiving letter from appellants:\n\u201cAll sales subject to strikes and accidents.\nSummers Bros. & Co., \u201e\nManufacturers of Box-Annealed, Common and Refined Sheet\nIron.\nStbuthees, Ohio, Mch. 4,1889. To Hibbard, Spencer, B. & Co., Chicago.\nTour favor of Mch. 1st at hand.\nWe make you the following offer:\n1.000 bdls. in March,\n1.000 \u201c \u201c April,\n1.000 \u201c \u201c May,\n1.000 \u201c \u201c June,\n500 \u201c \u201c July,\n500 \u201c \u201c August,\n5,000.\nMarch and April iron as follows:\nMo. 27 x 24 x 101 at $2.80 deld. Chicago. 26x24x101 \u201c $2.70 \u201c \u201c\n16 x 18 x 20 \u201c $2.60 \u201c \u201c\nMay, June, July and August iron:\nMo. 27x 24 x 101 at $2.85 deld. Chicago. 26x24x101 \u201c $2.75 \u201c \u201c\n16 x 18 x 20 \u201c $2.65 \u201c \u201c\nAll 60 days or 2 per cent ten days from date of invoice. Tours resp\u2019y,\nSummers Bros. & Co.\u201d\nTo this appellee replied, using the same letter head as before:\nChicago, March 9,1889. Summers Bros. & Co., Struthers, Ohio.\nGentlemen: Tour favor 4-th is at hand. If you are willing to revise your ideas a little we can trade with you. Tou may enter our order for 5,000 bdls. first-class common sheet iron, as follows:\n500 bdls. March delivery.\n500 \u201c April delivery.\n1.000 \u201c May delivery.\n1.000 \u201c June delivery.\n1.000 \u201c July delivery.\n1.000 \u201c August delivery.\u2019\nPrices to be: Ho. 22 and 24, $2.60.\n24 and 26, $2.70.\n27, $2.80.\nChicago delivery, 60 days, or two per cent cash in ten days.\nIf you accept our offer you may enter us for March shipment 250 bdls. 26 x 24 x 101 in., and 250 bdls. 27 x 24 x 101 in.\nAwaiting your prompt reply, we are,\nVery truly yours,\nHibbard, Spekcer, Bartlett & Co.\u201d\nMarch 11th, appellants made the following reply:\n\u201c All sales subject to strikes and accidents.\nSummers Bros. & Co.,\nManufacturers of Box-Annealed, Common and Refined\nSheet Iron.\nStruthers, Ohio, March 11, 1889.\nTo Hibbard, Spencer, B. & Co., Chicago.\nTour favor of March 9 at hand.\nMr. Charles: Dear Sir: We accept your offer, 5,000 bdls. iron, 500 March, 500 April, 1,000 May, 1,000 June, 1,000 July, 1,000 August.\nPrices, Ho. 27 at $2.80 26 \u201c $2.70 24 \u201c $2.60\nF. O. B. cars, Chicago, 2 per cent ten days from date of invoice. We also enter your order, 250 bdls. 26x101, and . 250 bdls. 27 x 101, Mch. shipment.\nRespectfully yours,\nSummers Bros. & Co.\u201d\nOn March 26th, appellee wrote to appellants as follows, using their customary letter-head:\n\u201c March 26,1889.\nSummers Bros. & Co., Struthers, Ohio.\nDear Sirs: We notice that some of the iron we are receiving from you is not branded with your name. Hereafter please see that each bundle is branded. It would suit us very much better if, in banding the iron, you would put the two end bands from twelve to fifteen inches from the end of the sheets, instead of about six inches, as you now place them. We find that when the bands are put on as suggested above, the iron can be piled in very much better shape. We are thinking some of placing another order for common iron for shipment in July and August, and would be pleased to have you give us your best figures.\nTours very truly,\nHibbabd, Spencer, Bartlett & Co.\u201d\nOn March 28th appellant replied with the following letter, on a plain piece of paper with no letter-head:\nStruthees, Ohio, Mar. 28, 1889. Hibbard, Spencer, B. & Co., Chicago, 111.\nGentlemen : Tour favor of 26th received. We will band the iron as you suggest, and have notified shipper that, every bundle must have our brand on. We will furnish you 3,000 to 5,000 bundles, June, July, August and September delivery.\n27 x 24 x 101 at $2.85.\n26x24x101 \u201c 2.75.\n24x24x101 \u201c 2.65,\nTerms: Freight, cash; balance two per cent., ten days. Kindly give us a prompt acceptance.\nTours respectfully,\nSummers Bros. & Co.\nExcuse the letter-head.\u201d\nTo this offer appellees on April 3rd, replied:\n\u201c April 3rd, 1889.\nTour favor of-the 28th ult. is at hand. We would not care to enter an order at the advance which you ask. If you care-to make an addition to our former order for July,August and September delivery, we will decide whether we want 3,000 or 5,000 bundles, and send you contract to that effect. We would not, however, as we said before, care to enter at the price you now name.\u201d\nAppellants on April 5th replied, using the same letterhead as in the letter of March 11th :\n\u201c April 5, 1889..\nYour favor of April 3d at hand. We will enter your order 3,000 or 5,000 bundles July, August and September delivery, at same figures as former order. We owe yoT 310 bundles April. Will you want all Ho. 26 and 27?\nSummers Bros. & Co.\u201d\nAppellee subsequently consented to receive 3,000 bundles under this second contract, but appellants never delivered any under it, and delivered but 1,847 bundles under the first contract. As an excuse for not doing so, they claimed to appellee on July 24th, that the contracts were made subject to strikes and accidents, and that they were prevented from filling the contracts in time, by reason of breakages in their mills.\nA Mr. Charles acted as the agent of appellees in making the contract of sale. Upon the trial, one of the appellants was permitted to testify what Mr. Charles told him some months after the contract was made, he, Charles, at the making of the contract, knew and understood as to. the printed statement on appellant\u2019s letter-heads\u2014\u201call sales subject to strikes and accidents\u201d\u2014forming a part of the contract.\nCharles denied having made the statements attributed to him.\nAppellees, in August, 1889, bought of other parties the iron contracted for, which appellants failed to supply, and proved by uncontroverted evidence that the purchase price at the time of such purchase remained the same from then through the month of September and into October.\nAppellees sued for the difference, that is, for the amount paid by them in excess of the contract price. If appellees were entitled to this, it was undisputed that there was due them the sum of $1,546.61, and for this amount the court instructed the jury to find for the plaintiff.\nCounsel for appellants state the controversy to be:\nFirst. The appellee contends that it is entitled to the payment made to it for iron in excess of the contract price, and that it is not bound by any printed condition contained in the letters on which the contract is based. The appellants insist that when the offer of sale was' made on March 4th, it was on the express condition, subject to \u201c strikes and accidents,\u201d and that the failure on their part to deliver was by reason of accidents in their mill plant. And therefore they should not be charged as claimed by the appellee.\nSecond. That appellee seeks to recover an-amount based upon the excess paid by it for iron bought in the month of August, 1889, without offering to prove what the market price of iron was, at the date when each installment was to be delivered.\nWhile we do not think this a completely accurate statement, yet it sufficiently indicates the nature of the controversy.\nWe do not regard the line \u201cAll sales subject to strikes and accidents \u201d at the \u2022 top of certain letters written by appellants as any part of the contract of sale by them made. The first co^ra\u00e9t was made by the letter of March 9,1889, written by appellee to appellants, in which was a definite proposition for the unconditional purchase of a certain quantity of iron, and by the reply of appellants to this. This reply, dated March 11th, accepted the offer of appellee.\nIt is contended that this letter written by appellants, beginning with \u201cWe accept your offer,\u201d following w\u00ediich is a repetition of the terms of the offer made by appellee, was a merely conditional acceptance and made a merely conditional sale, because there was printed thereon, not in the body of the letter or in the words stating the acceptance or promise, but above the address, the sentence, \u201cAll sales subject to strikes and accidents.\u201d It is to be borne in mind that this sentence is a part of a printed letter-head, while the words of acceptance were written for the time and occasion; that the letter of acceptance was entirely the production of appellants and such as they saw fit to give; that if they intended to make only a conditional acceptance, it was easy for them to have written, not, \u201c we accept your offer,\u201d but words that would have clearly indicated a conditional acceptance only, and thus have left the negotiations at that point incomplete and fruitless.\nThe rule of law that a man\u2019s own acts shall be taken most strongly against himself, obtains not only in grants, but extends in principle to all other engagements and undertakings. Gibson et al. v. Minet et al., 1 H. Blackstone 569-586; Broom\u2019s Legal Maxims, 596.\nThe conduct of appellants subsequent to the writing of this letter indicates that they did not regard their acceptance as conditional. The offer of appellees was absolute ; a conditional acceptance would have made no contract, but appellants, without asking an assent to any conditions they now insist existed, proceeded to forward iron to appellee.\nIf the words \u201c All sales subject to strikes and accidents \u201d were to be considered a part of the contract, the question of their effect would arise.\nThe sale was of iron, a quantity of \u201c common sheet iron,\u201d not necessarily of appellants\u2019 manufact\u00fare. Were, then, the strikes and accidents alluded to, those only occurring in appellants\u2019 mills ? And if so, what would be their effect upon the contract ? That is, would such strikes and accidents put an end to the contract and absolve the vendors from any further liability, or would they merely suspend the operation of the agreement and extend the time of delivery to a period when the strike was over or the damage resulting from the accident had been repaired %\nThe undertaking of appellants would have been satisfied by a delivery of merchantable, common sheet iron, the product of mills neither owned nor controlled by them; that the printed head-line, \u201c All sales subject to strikes and accidents \u201d entered into and formed a part of such a contract, we see no reason for thinking.\nHaving a right to supply merchantable bar iron made in any mill, the accident at appellants\u2019 in no wise rendered the performance of the contract impossible.\nThe testimony of one of appellants as to what Mr. Charles, the agent of appellee, said to him some months after the contract was made, ought not to have been admitted. There is no implied authority of an agent to, after the doing of an act, make admissions for his principal concerning the same.\nThe statements of an agent are admissible, generally, only when they are part of the res gestee. Story on Agency, Sec. 134, 137; 1 G-reenleaf on Ev., Sec. 133; Whiteside v. Margarel, 57 Ill. 507; Lindblom v. Ramsey, 75 Ill. 246; Bensley v. Brockway, 27 Ill. App. 410; McCarthy v. Muir, March term, 1893, Ill. App.\nIt is true that appellee could not, for appellants\u2019 account, buy in August, iron not due until September and October, nor can the August price determine the value of iron deliverable in subsequent months; but it is undisputed that appellants failed to deliver or offer the iron due in either August, September or October, and it was uncontroverted that the price paid in August was the price from thence up to a period in October, beyond the date at which the last installment should have been furnished.\nAppellants have therefore had all the advantage of an opportunity to deliver in September and October and been charged only with the price ruling at the respective dates when the iron promised was due.\nThe judgment of the Superior Court is affirmed.", "type": "majority", "author": "Waterman, J." } ], "attorneys": [ "Appellants\u2019 Brief, Leroy D. Thoman, Attorney.", "Appellees\u2019 . Brief, Hamline, Scott & Lord, Attorneys." ], "corrections": "", "head_matter": "William Summers et al. v. Hibbard, Spencer, Bartlett & Co.\n1. Contracts\u2014Subject to \u201cStrikes and Aeeidents.\u201d\u2014^Where aeon_ tract for bhe sale of iron was consummated by correspondence between the parties by letter, and upon the \u201c letter head\u201d of the vendor was printed the words \u201c all sales subject to strikes and accidents,\u201d and who having failed to comply with the terms- of his contract sought to avoid the same by reason of accidents, claiming that the words printed upon his letter head were a part of the contract, it was held that the words formed no part of the contract. The words \u201c all sales subject to strikes and accidents \u201d were a part of the printed letter head, while the words of acceptance were written for the occasion, and if the vendors had intended to make a conditional acceptance, they should have written words clearly indicating such intention.\n2. Contracts\u2014Rule of Construction.\u2014The rule of law that a man\u2019s own acts shall be taken most strongly against himself, obtains not only in grants, but extends in principle to all other engagements and undertakings.\n3. Contracts\u2014\u201cSubject to Strikes and Accidents.\"\u2014Application of the Law.\u2014Where a contract for the sale of common sheet iron, not necessarily of the vendor\u2019s manufacture, was made subject to strikes and accidents, presumably occurring in their own mills, it was held, that as the contract could have been satisfied by a delivery of \u201c common sheet iron, \u201d the product of mills neither owned nor controlled by them, the words \u201c subject to strikes and accidents\u201d formed no material part of the contract.\n4, Admissions\u2014By an Agent After Doing Act.\u2014There is no implied authority of an agent after the doing of an act to make admissions for his principal concerning the same.\n5. Evidence\u2014Statements of an Agent.\u2014>The statements of an agent are admissible generally, only when they are part of the res gestae.\nMemorandum.\u2014Assumpsit, in the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Declaration in assumpsit, for breach of contract. Pleas, general issue and set-off; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the March term, 1893, and affirmed.\nOpinion filed July 12, 1893.\nThe statement of facts is contained in the opinion of the court. '\nAppellants\u2019 Brief, Leroy D. Thoman, Attorney.\nAppellants contended that the printed as well as the written parts of the letters must be considered to determine what the contract is. Jones on the Construction of Contracts, Secs. 215, 216, 217; Robinson Brothers v. Transportation Co., 45 Iowa, 470.\nIf, in the nature of the contract, there is an implied condition by which either party will be relieved from such unqualified obligation, and when in such case, without his fault, performance is rendered impossible, it may be excused. Dexter v. Norton, 47 N. Y. 62; Booth v. Spuytenduyvil R. Mill Co., 60 N. Y. 491.\nAppellees\u2019 . Brief, Hamline, Scott & Lord, Attorneys.\nAppellees contended that under the contract in question, breakages or accidents at the mill was no excuse for nonperformance.\nFor rule of evidence as to letters: Brant v. Gallup, 111 Ill. 487; Flower v. Brumbach, 30 Ill. App. 297.\nFor rules as to printed forms: American Express Co. v. Pinckney, 29 Ill. 410; People v. Dulaney, 96 Ill. 503.\nFor rule as to bills of lading, warehouse receipts, etc.: M. D. Transp. Co. v. Thielbar, 86 Ill. 73; Western Transit Co. v. Ilosking, 19 Brad. 610.\nThe performance of the contract was not rendered impossible by any act of God or the public enemy, and save in such cases there are no implied conditions in any contract which excuse its non-performance. Bunn et al. v. Prather et al., 21 Ill. 218; Dehler v. Held et al., 50 Ill. 491; Steele et al. v. Buck, 61 Ill. 343.\nAppellees were entitled to the damages allowed, and could have claimed, and in such cases Avould have been alloAved, much more. 1 Sedgwick on Damages (7th Ed.), 557 and cases cited; Follansbee v. Adams, 86 Ill. 15." }, "file_name": "0381-01", "first_page_order": 377, "last_page_order": 386 }