{ "id": 2407081, "name": "Jacob Hime v. David Klasey et al.", "name_abbreviation": "Hime v. Klasey", "decision_date": "1881-11-02", "docket_number": "", "first_page": "166", "last_page": "170", "citations": [ { "type": "official", "cite": "9 Ill. App. 166" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "52 Ill. 486", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5301605 ], "opinion_index": -1, "case_paths": [ "/ill/52/0486-01" ] }, { "cite": "28 Ill. 457", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5203264 ], "opinion_index": -1, "case_paths": [ "/ill/28/0457-01" ] }, { "cite": "62 Ill. 188", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2608711 ], "opinion_index": -1, "case_paths": [ "/ill/62/0188-01" ] }, { "cite": "45 Ill. 137", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 425032 ], "opinion_index": -1, "case_paths": [ "/ill/45/0137-01" ] }, { "cite": "2 Gilm. 91", "category": "reporters:state", "reporter": "Gilm.", "case_ids": [ 2560545 ], "opinion_index": -1, "case_paths": [ "/ill/7/0091-01" ] }, { "cite": "75 Ill. 349", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2701116 ], "opinion_index": -1, "case_paths": [ "/ill/75/0349-01" ] }, { "cite": "24 Ill. 605", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5288354 ], "opinion_index": -1, "case_paths": [ "/ill/24/0605-01" ] }, { "cite": "24 Ill. 203", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5287348 ], "opinion_index": -1, "case_paths": [ "/ill/24/0203-01" ] }, { "cite": "67 Ill. 222", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 820101 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/67/0222-01" ] } ], "analysis": { "cardinality": 448, "char_count": 9097, "ocr_confidence": 0.536, "pagerank": { "raw": 1.0408102635582016e-07, "percentile": 0.5507153119737869 }, "sha256": "d18671ec4bfcedffb161ebce911ef439524180316ac74d519898b0e4e531680c", "simhash": "1:fabaa6ed539e2e1b", "word_count": 1612 }, "last_updated": "2023-07-14T17:47:09.046027+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Jacob Hime v. David Klasey et al." ], "opinions": [ { "text": "Pillsbury, J.\nThis action ivas brought upon a written contract, as follows:\n\u201cFreeport, III. March 6, 1879.\n\u201c To all whom it may concern:\n\u201c Know ye by these presents, that David Klasey, E. J. Everett and J. S. Pomeroy, of the town of Cadiz, County of Green, State of Wisconsin, of the first part, do agree to make and deliver to Jacob Hime, of the City of Freeport, County of Stephenson, State of Illinois, of the second part, four hundred thousand bass-wood staves, and headings to match the staves, in the following manner: Thirty thousand to be delivered each month or more; the first installment tobe delivered in the month of May, and until the 15th day of June, and thirty thousand each succeeding month until the whole amount be delivered, to be paid for in the following manner by Jacob Hime, at the rate of fifteen dollars per thousand ; the first payment to be made in thirty days after the first load of staves are delivered, and the balance to be paid in installments of four hundred and fifty dollars, each succeeding thirty days; said staves and heading to be of the following dimensions: Staves to be thirty-four inches in length, and to be on an average four and a half inches in width, and to be cooper listed, and three-fourths inch thick when seasoned.\n\u201c Heading to be twenty-two inches in length and in three pieces; the three pieces to aggregate twenty-two inches in width.\n\u201cJacob Hime.\u201d\nFrom the 20th of May, 1879, to the 16th day of September, 1879, the appellees delivered, and appellant accepted, 31,311 staves, for the price of which this suit was brought.\nThe defense interposed was that the staves were of inferior quality, for which a deduction was claimed from the price, and it was further insisted that the appellees had not complied with their contract, by furnishing the second or any other installment of 30,000, and by reason of such failure appellants were obliged to and did go into the market and purchase large quantities of staves at greatly increased prices, the price of staves having advanced, and sought to recoup such damages in this action.\nIt was claimed by the appellees that the appellant did not pay for the staves actually delivered, within thirty days after the first installment was received, and they were therefore entitled to rescind the contract, and no recoupment could be allowed. It was further claimed by them that the time for the performance of the contract was extended by Hime.\nThe only evidence in the record tending to show an extension of the time, is the testimony of the appellee, David Klasey; that he talked with the appellant about the staves not being delivered by the loth of June, and that he told Hime that it would be impossible for them to make the staves on time, and that Hime said it did not matter so much if they did not quite come up to time, if they did the best they could; that they were new beginners, and he did not expect they could exactly.\nThere is nothing in this language of appellant that would authorize the appellees in delaying for months the delivery of each installment, or would justify them in refusing to deliver any staves for the space of thirty days or more. The most that can be claimed is that Ilime would not consider a literal compliance of the contract in regard to the time-of delivery as very material, if they would substantially comply; that if they used their best endeavors to fulfill the contract they could have a little latitude in regard to time.\nIt will be noticed that 30,000 staves were to be delivered each month, the first installment to he delivered by June 15th, and thereafter monthly. They were to commence in May, and the first payment was to be made in thirty days after the fiivt load was delivered. It was not intended by this provision, regarding the first payment, that a delivery of one load in thirty days next succeeding, should be a compliance with the contract, but as it was not known \u25a0 at what time in May the delivery would commence, the monthly payment and the delivery of the monthly installments should date from the first load, provided the first installment should be delivered by June 15th.\nAs was said, the first installment was not delivered until in September, about four mouths from the delivery of the first load, which it is clear was not a substantial compliance with the contract,even with the latitude in time given for the delivery; but as the staves were received and used by the appellant the court was right under the authority of Richards v. Shaw, 67 Ill. 222, in holding that they should be paid for.\nAt the same time, we think that the appellant was entitled to recoup any damage he may have sustained by reason of the appellees\u2019 failure to'1 furnish the balance of the staves under the contract..\nIt is suggested that, as Ilime did not pay in thirty days, appellees were absolved from the performance of the contract upon their part. The contract docs not make the payment of the sum due on the preceding installment a condition precedent to the delivery of the succeeding installment of 30,000 staves, and in the absence of such a stipulation we would not presume such to be the intention of the parties, and until there was a demand for the sum due, and a refusal to pay it, we are of the opinion that the appellees could not declare the contract abrogated. Now the evidence of the appellee, David Klasey, shows that no demand was made upon appellant for payment for the staves already delivered, until two or three months after the last of the 31,311 staves were delivered, when Hime refused, to pay, saying he had been damaged by their failure to deliver any more upon the contract. The evidence in this record causes us to believe that it was the appellees who had not only up to that time violated the contract, but at the time of the demand for payment had abandoned it, and after the lapse of two or three months, without any further attempt to comply with the contract upon their part, the appellant was justified in treating the contract abandoned by the appellees. At all events, this question should have been submitted to the jury under proper instructions, and if the fact should be found that the appellees had failed to comply with the contract, then the appellant should be allowed his damages by way of recoupment; while he should pay for the benefit received he should be allowed the damages he has sustained in consequence of the breach of the contract by the appellees. Richards v. Shaw, supra.\nThe instructions given by the court to the jury, deprived, the appellant of this right of recoupment, and should for that reason have been refused or modified; beside there does not appear to be any evidence in the record upon which .to base the hypothesis stated in the instructions, that the appellant had refused to pay for the staves within thirty days after delivery.\n\"We think this case should be submitted to another jury under proper instructions, and accordingly reverse the judgment and remand the cause.\nJudgment reversed.", "type": "majority", "author": "Pillsbury, J." } ], "attorneys": [ "Mr. J. A. Crain, for appellant;", "Mr. U. D. Meacham, for appellees;" ], "corrections": "", "head_matter": "Jacob Hime v. David Klasey et al.\n1. Contract \u2014 Delivery\u2014Extension of time of delivery. \u2014 A mere remark by one party to a contract, when told by the other party that they could not deliver the product in the time agreed, that \u201cit did not matter so much if they did not quite come up to time, if they did the best they could,\u201d \u25a0will not authorize the producer in delaying for months the delivery of each installment, or justify them in refusing to deliver any for the space of thirty days or more. n\n2. Delivery and payment. \u2014 According to the contract, the first installment was to be delivered in May, and first payment to be made in thirty days after the first load was delivered. It was not intended by this that a delivery of one load in May should be a compliance with the contract as regards the first payment.\nS. Recoupment of damages caused by delay. \u2014 The vendee is entitled to recoup any damages he may have sustained by reason of the failure of the vendor to furnish the balance under the contract.\n4. Rescisi\u00f3n of contract. \u2014 The contract does not make a failure to pay for a preceding installment a condition precedent to the delivery of another; and until a demand for payment and refusal, the vendor could not rescind the contract.\nAppeal from the Circuit Court of Stephenson county; the Hon. William Brown, Judge, presiding.\nOpinion filed November 2, 1881.\nMr. J. A. Crain, for appellant;\nthat the right to rescind did not depend upon the fact of non-payment, cited Carney v. Newberry, 24 Ill. 203.\nA court will impose upon a party the same construction to a contract which he by his own words and acts has put upon it: Parmalee v. Hembledon, 24 Ill. 605; Leavers v. Cleary, 75 Ill. 349.\nMr. U. D. Meacham, for appellees;\ngenerally upon the right of appellees to recover, cited 2 Smith\u2019s Lead. Cas. 50; 2 Parsons on Contracts, 523; Oxendale v. Wetherell, 9 B. & C. 386; Eldridge v. Rowe, 2 Gilm. 91; Boynton v. Wicker, 45 Ill. 137; Cath. Bishop v. Bauer. 62 Ill. 188.\nUpon the measure of damages : Strawn v. Cogswell, 28 Ill. 457; Phelan v. Andrews, 52 Ill. 486." }, "file_name": "0166-01", "first_page_order": 162, "last_page_order": 166 }