{ "id": 5172159, "name": "Charles H. Ferry v. George W. Miltimore et al.; Chicago Tire and Spring Works v. Same", "name_abbreviation": "Ferry v. Miltimore", "decision_date": "1896-06-11", "docket_number": "", "first_page": "557", "last_page": "563", "citations": [ { "type": "official", "cite": "64 Ill. App. 557" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "2 Hen. & Mun. 420", "category": "reporters:state", "reporter": "Hen. & M.", "case_ids": [ 6726936 ], "opinion_index": 0, "case_paths": [ "/va/12/0475-01" ] }, { "cite": "134 Ill. 183", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5437880 ], "opinion_index": 0, "case_paths": [ "/ill/134/0183-01" ] }, { "cite": "4 Gilm. 536", "category": "reporters:state", "reporter": "Gilm.", "case_ids": [ 2561973 ], "opinion_index": 0, "case_paths": [ "/ill/9/0536-01" ] }, { "cite": "5 Gilm. 309", "category": "reporters:state", "reporter": "Gilm.", "case_ids": [ 2568652 ], "opinion_index": 0, "case_paths": [ "/ill/10/0309-01" ] }, { "cite": "35 Ill. App. 407", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5007378 ], "opinion_index": 0, "case_paths": [ "/ill-app/35/0407-01" ] } ], "analysis": { "cardinality": 600, "char_count": 11242, "ocr_confidence": 0.524, "pagerank": { "raw": 2.3728075846420702e-07, "percentile": 0.7957357745567406 }, "sha256": "da3ec29a4a63db84c3d17d69f8d7ab7392b5ef767c8d13bf0da21a2bc03a02e1", "simhash": "1:7e3caca39d9c8aff", "word_count": 1971 }, "last_updated": "2023-07-14T18:42:36.948645+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Charles H. Ferry v. George W. Miltimore et al. Chicago Tire and Spring Works v. Same." ], "opinions": [ { "text": "Mr. Presiding Justice Gary\ndelivered the opinion oe the Court.\nMiltimore was the chief man of, and gave name to, the Miltimore Elastic Steel Car Wheel Company, a manufacture ing corporation in Vermont.\nThe dealings which are the subject of controversy here begun, as shown in a document, are as follows:\n\u201c Chicago, March 23, 1883.\nThe Chicago Tire & Spring Works,\nDear Sirs : We hereby agree to purchase from you the undermentioned car wheel tires, viz.:\n100 Tires 30 in. outside dia., 2-\u00a1- in. thick.\n600 \u201c 33 \u201c \u201c \u201c 2| \u201c \u201c\n300 \u201c 42 \u201c \u201c \u201c 21 \u201c \u201c\nPrice 51 cts. per lb. f. o. b. Chicago.\nTerms cash 30 days.\nDelivered in lots as required on or before the 1st day of Januarv, 1884. You have the option of delivering double the quantity and in above proportion at same price and terms.\nThe Miltimore Elastic Steel Car Wheel Co.,\nO. B. 52. By H. Pennock, President.\n53 Dearborn St.\u201d\nOn the back as follows:\n\u201cBlooms to be of Cammel Manfgr. & Siemens-Martin Steel.\nF. M. Atkinson, Prest.\u201d\nAtkinson was president of the Tire Company. Twelve hundred and twenty-eight tires were delivered. A large part of them were made of steel inferior to the kind specified. Quarrels arose between the parties about many things \u2014other dealings, as well as the tires. Ferry was largely interested in the tire company, and also had individual dealings with the appellees.\nMiltimore, in August, 1884, wrote to his own employe that \u201c in the first place there is something radically wrong with their tires. We are having them tested. Farnum says they are nothing but high carbon Bessemer steel which we can buy delivered FT. Y. for 3J per pound. * * * My opinion is about one-half of these tires are Bessemer; the other half is open hearth. We have been turning all of these \\ tires, and we find a part of them very short; the chip breaks off' short, showing the metal is lacking of tenacious qualities; the other half turned up like Midvale tire, long chips, tough and hard.\u201d-\nAnd in December, 1884, in an affidavit, be stated that the tires were of an inferior quality, and of poor metal, and gave very small mileage, and were inferior to any open hearth tire in use * * * and of much poorer quality than said tire works promised and agreed;\u201d with much other depreciation of the quality of the tires.\nLitigation was pending between the parties.\nIn this condition of affairs an agreement consisting of thirteen articles, and occupying here nearly six printed pages of the abstract, was made January 12, 1885, portions of which are as follows:\n\u201cMemorandum of agreement, entered into between Charles H. Ferry, party of the first part, The Chicago Tire and Spring Works, party of the second part, The Miltimore Elastic Steel Car Wheel Company, party of the third part, and George W. Miltimore, party of the fourth part.\nWhereas, the above parties are desirous of settling all suits and differences now existing between them, it is now mutually agreed between them as follows:\nII. An accounting shall be taken of the steel tires actually delivered by the party of the second part to the party of the third part, under contracts executed on or about the 23d day of March, 1893, including 508 33-inch tires hitherto delivered at Garfield, Illinois, which tires shall be surrendered by the party of the second part to the party of the fourth part f. o. b. Chicago, free from all liens and charges, except the necessary charges of handling and storing the same. Also 176 42-inch tires manufactured but not delivered, which shall be delivered by the party of the second part to the party of the fourth part, free from all liens and charges, f. o. b. Chicago.\nInterest shall be added to the purchase price of the tires delivered at seven per cent per annum, commencing to run thirty days after date of delivery.\nIX. It is agreed that the party of the fourth part, the party of the third part, or any corporation which shall become its successor and carry on the business of the party of the fourth part, shall purchase and take when manufactured into tires the balance of the blooms purchased and held by the party of the second part, for the purpose of carrying out the contracts entered into on or about the 23d day of March, 1883, between the party of the second part and party of the third part, in such quantities and at such times as the business of said party of the fourth part .and party of the third part, or its successor, shall demand; and it is agreed that no other tires shall be used in said business unless specially directed by purchasers of wheels. If any specifications shall be made by purchasers of wheels for other makes of tires, the party of the second part shall be notified thereof and given ample opportunity of arranging with such purchasers for the use of tires manufactured out of said blooms.\nVII. If any tires furnished by the party of the second part to the party of the third part or the party of the fourth part shall prove defective in manufacture or quality of material, the party of the second part agrees to makegood any expense or loss necessarily incurred by the party of the fourth part in remedying defects in the manufacture of any such tires, and to save harmless the party of the third part and party of the fourth part from any claims made by the purchasers of wheels on account of defects in the material or manufacture of' such tires.\u201d\nI transpose articles 7 and 9, as the order seems to me more appropriate.\nNow the main question between these parties is whether the whole remedy of the appellees for defects in the tires is under article 7, and limited by the words of that article.\nWe lay out of view the construction placed by the appellees upon some testimony by Ferry as to the object and meaning of the agreement, as well as all prior negotiations.\nThe meaning of the agreement is to be found in its words, read in the light of surrounding circumstances. Davis v. Sexton, 35 Ill. App. 407; Smith v. Brown, 5 Gilm. 309; Benjamin v. McConnel, 4 Gilm. 536.\nIt is clear that the parties intended that the agreement should embrace the whole subject of their relations to each other; they were \u201c settling all suits and differences\u201d between them.\nMiltimore knew there were defects in the steel; yet he agrees that he and his corporation\u2014and he seems absolutely to control it\u2014or any successor to it, shall purchase and take the tires that might be made of the steel on hand; and to secure himself and his corporation against loss, he took the agreement of Ferry and his corporation to make good any expense \u201c necessarily incurred in remedying defects in the manufacture,\u201d * * * \u201c and to save harmless \u201d against claims by purchasers for \u201c defects in the material or manufacture.\u201d\nProvided no expense was incurred in remedying defects in manufacture, and appellees were not damnified by claims of purchasers for defects in material or manufacture, he showed no anxiety or care as to the intrinsic quality of the tires themselves.\nThe tires were to be sold on wheels. If they could be put on the wheels without extra expense, and the purchasers did not complain, how well the wheels wore did not concern him, and it seems did not concern Ferry either. They were equally indifferent.\nThis being the. case, the appellants should be charged only with such expense actually incurred, and claims of purchasers sustained.\nAnd all the tires \u201c furnished \u201d from the beginning of the dealings come under the same provisions as to expense and claims.\n\u201c Furnished \u201d by itself is ambiguous. Alone it is elliptical. The auxiliary verb must be understood; and as some of the tires were in use on wheels\u2014many had been delivered, but not yet on wheels, some already made, not yet delivered, and others to be made\u2014there was the same reason for extending the provisions to the past as to the future, and vice versa. The meaning is, \u201cif any tires\u201d which have been or may be \u201c furnished.\u201d\nThe court below acted upon these principles as to the 1,228 tires delivered before the agreement was made, but, as to the tires mentioned in article two of the agreement, held that they were not such as should have been delivered, and that therefore the appellees should not be charged with them, and should be credited with freight paid on them. If the agreement was made under any mistake of fact as to the quality of the tires mentioned in article two, the bill filed by Miltimore should not have been\u2014as this was\u2014for relief under the agreement. The bill contains no allusion to the terms under which dealings began, no reference to the document of March 28, 1883, and yet the decree, if it has any basis as to the tires mentioned in article two, must be on the theory that the guaranty implied by the words on the back of that document remained in force, notwithstanding the full settlement of \u201call suits and differences between them,\u201d and regardless of the fact that the Wheel Company was, at the time the agreement was made, alleging the inferior quality of the tires as the cause of action in one suit, and of defense in another.\nThis bill was filed October 25, 1886, and there was no allusion in any pleading in the case to the original document, \u201c23 March, 1883,\u201d until May 11, 1888, and then only in an answer to a cross-bill of Ferry. Relief can not be given on an answer. King v. Cooper, 134 Ill. 183.\n. The decree is reversed and the cause remanded, with directions to the Circuit Court that an account be stated anew, in which account the appellants shall be allowed the purchase price of all tires delivered, and charged only in accordance with the words of article seven.\nMo other objections to the decree are argued, and if there were, we are not in duty bound to go through items in an account. When the State of Virginia contained something like three-fourths as many people as are now in Cook county, with possibly not one-fourth as much business in the Court of Appeals of that State as now comes to this court, that court said of themselves: \u201cWithout wasting their time in adjusting the particulars of a long and intricate account\u2014a business which is the peculiar province of a commissioner and accountant\u2014and which, if this court were to admit themselves to be bound to engage in, would in a year or two put a total stop to the administration of justice in civil causes in this commonwealth.\u201d Perkins v. Saunders, 2 Hen. & Mun. 420. Keversed and remanded, with directions.", "type": "majority", "author": "Mr. Presiding Justice Gary" } ], "attorneys": [ "Green, Robbins & Honore, attorneys for appellants.", "Peck, Miller & Starr, attorneys for appellees." ], "corrections": "", "head_matter": "Charles H. Ferry v. George W. Miltimore et al. Chicago Tire and Spring Works v. Same.\n1. Contracts\u2014Construction of.\u2014The meaning of an agreement is to be found in its words, and read in the light of surrounding circumstances.\n3. Equity Practice\u2014No Affirmative Relief on an Answer.\u2014Affirmative relief in chancery can not be given upon an answer.\n3. Same\u2014Adjusting Accounts.\u2014Courts will not waste their time in adjusting the particulars of a long and intricate account\u2014a business which is the peculiar province of a commissioner and accountant.\nBill to Adjust an Account.\u2014Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.\nHeard in this court at the March term, 1896.\nReversed and remanded with directions.\nOpinion filed June 11, 1896.\nGreen, Robbins & Honore, attorneys for appellants.\nPeck, Miller & Starr, attorneys for appellees." }, "file_name": "0557-01", "first_page_order": 555, "last_page_order": 561 }