Beardsley v. Smith

61 Ill. App. 340, 1895 Ill. App. LEXIS 777

• Court: Appellate Court of Illinois
• Decided: December 12, 1895
• Status: Published

Opinion

Mr. Justice Waterman

delivebed the opinion of' the Coubt.

Upon the trial the court, notwithstanding it had held good the plea of set-off, 'refused to allow the defendants the benefit of the profit, if any there was, in such contract, and the loss of such profit, if lost, on such goods. That defendants were ready, willing, able, and offered to deliver the goods, was proven. The court seemed to be of the opinion that as appellants could not tell what kind of goods appellee would have selected, therefore his contract to purchase $2,000 worth of goods was neither enforcible nor one for the breach of which damages could be recovered.

What were the respective rights and obligations of the parties to this agreement ?

Appellants had agreed to pay to appellee rent at the rate of $50 per month; he agreed to purchase of them at their lowest jobbing prices such goods as they manufacture, to the amount of $2,000 per annum.

Being ready to manufacture and deliver goods, such as, when the contract was made, they were making, they called upon appellee to select and order; he refused to do so.

Whether, under this contract, the right of selection of the kind of goods' manufactured was in appellants or appellee, we do not feel called upon to decide. It was, not because appellants refused to give to him the right of selection that appellee refused to take goods save to the value of $700.

If the right to select belonged to appellee, then it was his duty within the year to make his selection.

Appellee having refused to select, appellants became entitled to maintain an action for refusal to order or select. Hosmer v. Wilson, 7 Mich. 294, 303, 304; Allen v. Jarvis, 20 Conn. 38; McCombe v. N. Y. & N. E. Ry. Co., 20 N. Y. 495; Butler v. Butler, 77 N. Y. 472; Pittsburgh Ry. Co. v. Heck, 20 Ind. 303; McCormick v. Basal, 46 Iowa 235; Moody v. Brown, 34 Me. 107; Derby v. Johnson, 21 Vt. 21; Hochster v. DeLatour, 20 L. & Eq. 157.

The measure of damages in such special action for refusal to select, is such amount as will fully compensate the vendor for being deprived of the benefit of his contract. Phillpot v. Evans, 5 M. & W. 475.

In the case at bar the goods were contracted for at the defendant’s lowest jobbing prices; the measure of the damages is the difference between this and what it would have cost appellants to make them. Black River Lumber Co. v. Warner, 93 Mo. 374; Crescent Mfg. Co. v. Nelson Mfg. Co., 100 Mo. 325; Hinckley v. Pittsburgh Steel Co., 121 U. S. 264; Salvo v. Duncan, 49 Wis. 151; Eckenrode v. Chemical Co., 55 Md. 51; Hale et al. v. Trout et al., 35 Cal. 229.

The judgment of the Superior Court is reversed and the cause remanded.