Mr. Justice Smith
delivered the opinion of the court.
It was contended on the trial by appellant that the careless, negligent and indifferent operation of appellee’s plant prior to October 15, 1906, and the communications received by it from appellee to the effect that he expected to close his plant, and that the same would probably remain closed for a period of sixty days, and that he did not know that he would be able to operate it again, justified appellant in declining to pay the amount of money due October 15, 1906, until such time as an estimate of the damage which such course would entail upon it could be made, to the end that it might recoup such damages out of the amount so found due to appellee for cement delivered under the contract at that time.
It was further claimed by appellant that the contract required a reasonable and continued operation of the plant by appellee during the year, and that appellee failed to fulfill his contract in this regard, and consequently fell behind in his shipments on orders from appellant.
At the beginning of the trial it was agreed in substance between the parties that $50,082.31 worth of cement had been shipped by appellee to appellant in August, September and October, 1906, none of which had been paid’for by appellant; that appellant had returned sacks, etc., to the amount of $16,735.29 and that there was due appellee from appellant the sum of $34,317.48 with interest, subject to such set-off as appellant might prove, if any, and subject also to appellant’s further right to disprove the correctness of any items in appellee’s claim if it should be able to do so.
From these contentions and the stipulation of the parties it appears that the dispute between the parties depends in great, measure upon the construction of the contract set out in the statement preceding this opinion. The theory on which the trial court proceeded, apparently, was that appellee under the contract was bound to run his mill at its reasonable capacity throughout the year, or to use all reasonable effort to do so; and on this theory much irrelevant and immaterial evidence was introduced by appellant.
Our opinion is that the court erred in adopting appellant’s view of the contract. By the terms of the contract appellant agreed “to buy the entire output of cement manufactured during the year 1906 by the party of the first part at their cement plant, located at Bellevue, Michigan.” No specific amount of cement was mentioned in the contract except the 65,000 barrels which were to be manufactured and ordered out at once. There is no dispute that this quantity of cement was manufactured by appellee, but it was not ordered to be shipped by appellant for several months, for some reason not made to appear in the record. The contract in terms did not require appellee to manufacture and ship any other specific amount of cement, nor did it require appellee to run his plant in any particular way or prohibit him from closing his plant whenever he might find it desirable or necessary so to do in the prosecution of his business. If the contract contains any provision which obligated appellee to keep his mill running at its reasonable capacity throughout the year, regardless of whether it would be profitable, or otherwise convenient for him to do so, it is by implication from extraneous facts and not by any express provision. A court is not justified in reading into a written contract a provision which the parties to it have failed to insert, simply because from one point of view it would have been reasonable or desirable.
In the leading case of Aspdin v. Austin, 5 Ad. & El. (N. S.) 67, the doctrine and the reasons therefor are stated with great clearness as follows:
“Where parties have entered into written engagements, with express stipulations, it is manifestly not desirable to extend them by implication; the presumption is, that having expressed some, they have expressed all the conditions by which they intend to be bound under the instrument. It is possible that each party to the instrument may have contracted on the supposition that the business would in fact be carried on, and the service in fact continued, during the three years, and yet neither party might have been willing to bind themselves to that effect; and it is one thing for the court to effectuate the intention of the parties to the extent to which they have, even imperfectly, expressed themselves, and another to add to the instrument all such covenants as upon full consideration the court may deem fitting for completing the intention "of the parties, but which they, either purposely or unintentionally, have omitted. The former is but the application of a rule of construction to that which is written; the latter adds to the obligation by which the parties have bound themselves, and is, of course, quite unauthorized, as well as liable to great practical injustice in the application.”
This is the well-settled law of construction and interpretation of contracts as announced in all the authorities on this subject; and it forbids the court to add to the provisions expressed in the contract before us a new and distinct undertaking.
There is no controversy in the record that appellant refused to make the payment due, under the contract, on October 15,1906. In our opinion, this was a breach of a material condition of the contract which entitled appellée to terminate the contract. Keeler v. Clifford, 165 Ill. 544; Dobbins et al. v. Higgins et al., 78 id. 440; L. S. & M. S. Ry. Co. v. Richards, 152 id. 59.
Appellant assigns error in the giving of the following instruction to the jury:
6 ‘ The court instructs the jury that the refusal on the part of the defendant to make payment on the 15th day of October, 1906, in accordance with the terms of the contract entered into by and between the parties amounted to a breach of said contract on its part.
“And you are further instructed, as a matter of law, that such breach "of the contract on its part entitled the plaintiff to refuse to make any further shipments of cement under said contract.
“And the court further instructs the jury that the plaintiff, having elected to abandon the contract by reason of such breach on the part of the defendant on and after October 27, 1906, the jury should consider the contract as rightfully terminated on and after said last, mentioned date.”
The objections made to this instruction are that it assumed that the conduct of appellee did not authorize the action of appellant in withholding the payment due October 15, 1906; and it also assumed that notwithstanding the violation of the terms of the contract by appellee in closing his plant, or so representing to appellant, the contract was still in full force, had not been violated, and that closing the mill was not a breach on the part of appellee which justified the course pursued by appellant.
For reasons given above we think the instruction was proper, and we see no serious objection to it. The law is well settled that the non-payment of the instalment named in the instruction was a breach of a material condition of the contract, and entitled appellee to abandon the contract and sue for the amount actually due thereunder. Keeler v. Clifford, supra; Dobbins v. Higgins, supra; L. S. & M. S. Ry. Co. v. Richards, supra.
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Mr. Justice Smith
delivered the opinion of the court.
It was contended on the trial by appellant that the careless, negligent and indifferent operation of appellee’s plant prior to October 15, 1906, and the communications received by it from appellee to the effect that he expected to close his plant, and that the same would probably remain closed for a period of sixty days, and that he did not know that he would be able to operate it again, justified appellant in declining to pay the amount of money due October 15, 1906, until such time as an estimate of the damage which such course would entail upon it could be made, to the end that it might recoup such damages out of the amount so found due to appellee for cement delivered under the contract at that time.
It was further claimed by appellant that the contract required a reasonable and continued operation of the plant by appellee during the year, and that appellee failed to fulfill his contract in this regard, and consequently fell behind in his shipments on orders from appellant.
At the beginning of the trial it was agreed in substance between the parties that $50,082.31 worth of cement had been shipped by appellee to appellant in August, September and October, 1906, none of which had been paid’for by appellant; that appellant had returned sacks, etc., to the amount of $16,735.29 and that there was due appellee from appellant the sum of $34,317.48 with interest, subject to such set-off as appellant might prove, if any, and subject also to appellant’s further right to disprove the correctness of any items in appellee’s claim if it should be able to do so.
From these contentions and the stipulation of the parties it appears that the dispute between the parties depends in great, measure upon the construction of the contract set out in the statement preceding this opinion. The theory on which the trial court proceeded, apparently, was that appellee under the contract was bound to run his mill at its reasonable capacity throughout the year, or to use all reasonable effort to do so; and on this theory much irrelevant and immaterial evidence was introduced by appellant.
Our opinion is that the court erred in adopting appellant’s view of the contract. By the terms of the contract appellant agreed “to buy the entire output of cement manufactured during the year 1906 by the party of the first part at their cement plant, located at Bellevue, Michigan.” No specific amount of cement was mentioned in the contract except the 65,000 barrels which were to be manufactured and ordered out at once. There is no dispute that this quantity of cement was manufactured by appellee, but it was not ordered to be shipped by appellant for several months, for some reason not made to appear in the record. The contract in terms did not require appellee to manufacture and ship any other specific amount of cement, nor did it require appellee to run his plant in any particular way or prohibit him from closing his plant whenever he might find it desirable or necessary so to do in the prosecution of his business. If the contract contains any provision which obligated appellee to keep his mill running at its reasonable capacity throughout the year, regardless of whether it would be profitable, or otherwise convenient for him to do so, it is by implication from extraneous facts and not by any express provision. A court is not justified in reading into a written contract a provision which the parties to it have failed to insert, simply because from one point of view it would have been reasonable or desirable.
In the leading case of Aspdin v. Austin, 5 Ad. & El. (N. S.) 67, the doctrine and the reasons therefor are stated with great clearness as follows:
“Where parties have entered into written engagements, with express stipulations, it is manifestly not desirable to extend them by implication; the presumption is, that having expressed some, they have expressed all the conditions by which they intend to be bound under the instrument. It is possible that each party to the instrument may have contracted on the supposition that the business would in fact be carried on, and the service in fact continued, during the three years, and yet neither party might have been willing to bind themselves to that effect; and it is one thing for the court to effectuate the intention of the parties to the extent to which they have, even imperfectly, expressed themselves, and another to add to the instrument all such covenants as upon full consideration the court may deem fitting for completing the intention "of the parties, but which they, either purposely or unintentionally, have omitted. The former is but the application of a rule of construction to that which is written; the latter adds to the obligation by which the parties have bound themselves, and is, of course, quite unauthorized, as well as liable to great practical injustice in the application.”
This is the well-settled law of construction and interpretation of contracts as announced in all the authorities on this subject; and it forbids the court to add to the provisions expressed in the contract before us a new and distinct undertaking.
There is no controversy in the record that appellant refused to make the payment due, under the contract, on October 15,1906. In our opinion, this was a breach of a material condition of the contract which entitled appellée to terminate the contract. Keeler v. Clifford, 165 Ill. 544; Dobbins et al. v. Higgins et al., 78 id. 440; L. S. & M. S. Ry. Co. v. Richards, 152 id. 59.
Appellant assigns error in the giving of the following instruction to the jury:
6 ‘ The court instructs the jury that the refusal on the part of the defendant to make payment on the 15th day of October, 1906, in accordance with the terms of the contract entered into by and between the parties amounted to a breach of said contract on its part.
“And you are further instructed, as a matter of law, that such breach "of the contract on its part entitled the plaintiff to refuse to make any further shipments of cement under said contract.
“And the court further instructs the jury that the plaintiff, having elected to abandon the contract by reason of such breach on the part of the defendant on and after October 27, 1906, the jury should consider the contract as rightfully terminated on and after said last, mentioned date.”
The objections made to this instruction are that it assumed that the conduct of appellee did not authorize the action of appellant in withholding the payment due October 15, 1906; and it also assumed that notwithstanding the violation of the terms of the contract by appellee in closing his plant, or so representing to appellant, the contract was still in full force, had not been violated, and that closing the mill was not a breach on the part of appellee which justified the course pursued by appellant.
For reasons given above we think the instruction was proper, and we see no serious objection to it. The law is well settled that the non-payment of the instalment named in the instruction was a breach of a material condition of the contract, and entitled appellee to abandon the contract and sue for the amount actually due thereunder. Keeler v. Clifford, supra; Dobbins v. Higgins, supra; L. S. & M. S. Ry. Co. v. Richards, supra.
Objection is made to the fifth instruction given at the instance of appellee, to the effect that if the jury believed from the evidence that the cement or a part thereof was defective at the time and place testified to, the appellee was not liable for such defective cejment unless they believed from all the evidence such defect existed at the time the cement was delivered on the car or cars at Bellevue, Michigan.
The law never presumes a breach of warranty. Under the stipulation and the evidence in the record, appellee was entitled to recover unless there was a breach of warranty. That was a matter of defense. Maltman v. Williamson, 69 Ill. 423; Ryan v. Hooton, 122 Ill. App. 514. The contract required the cement to be delivered on board cars at Bellevue, Michigan. If appellant desired to make the defense that the cement did not have the qualities it was warranted to have, the evidence would properly be limited to such as tended to show its condition at the time and place of delivery. Tests made of the cement after it had been subjected to conditions which would change its qualities, and did not tend to show its condition or qualities at the time and place of delivery would not be competent. We think the instruction stated the law applicable to the case correctly.
At the request of appellee the court instructed the jury that if they believed from the evidence that appellee was unable to procure ears in which to make shipments, and that by reason thereof appellee was unable to make shipments at such times, appellee was not liable for damages, if any, caused by not making shipments on that account.
The evidence shows that appellee was at times unable to procure ears in which to make shipments. It appears also that appellee shipped all the cement for which he had received shipping instructions, except about fifteen hundred barrels, or two or three days’ shipments, when he finally discontinued all deliveries of cement for the reason above stated. The contract does not stipulate that any particular amount should be shipped at any particular time. And, moreover, on appellant’s theory of the contract, appellee was bound only to use all reasonable efforts to ship the cement as rapidly as possible. In view of the evidence and the provisions of the contract, we see no error in the instruction.
Exception is taken by appellant to the instruction given at the request of appellee in regard to alleged defective cement which had been retained by appellant when it had been requested by appellee to return such cement. The instruction told the jury that such cement, was accepted in fulfillment of the contract. We think this instruction was correct upon the familiar principle stated in De Kalb Implement Works v. White & Co., 59 Ill. App. 171.
From what we have said above as to the burden of proof where a party is claiming damages for a breach of warranty, and under the authority of Morris v. Wibaux, supra, we are of the opinion that the proposition of law contained in the second instruction given at the instance of appellee is sound.
* The first instruction given at the request of appellee states that if the jury believe from all the evidence that appellee delivered to appellant cement of a quality inferior to that contracted to be delivered, and if they further believe from the evidence that appellant or the parties to whom the cement was delivered could have discovered said inferior quality by the use of reasonable diligence before the same was used, as claimed, then no damages could be recovered against appellee by reason of defective work, if any, caused by the use of such cement. The objection to this instruction, it is said, is to be found in the words, ‘ ‘ or the parties to whom the cement was delivered.”
If the parties to whom the cement was delivered could by reasonable diligence have discovered before using the same that the cement was defective, then appellant had the means of discovering that fact. The instruction does not assume as a fact that the parties to whom the cement was delivered always had the means of discovering its defective quality. The record shows, however, that in many cases the cement could have been tested by the city engineers of the respective cities where used, or otherwise tested. If appellant’s customers used any cement which they knew, or by the exercise of reasonable diligence could have known, to be defective, they could not claim damages against appellant for defective work done with-the same, and appellant, therefore, ought not to be permitted to claim damages on that ground against appellee. We do not think there was reversible error in the instruction.
Appellant concedes in argument that the evidence, •being conflicting, its weight was for the jury, and it does not ask a reversal of the judgment upon the merits. We find no'reversible error in the record, and the judgment is affirmed. The cost of the supplemental abstract of record must be taxed against appellant.
'Affirmed.