Globe Brewing Co. v. American Malting Co.

152 Ill. App. 194, 1909 Ill. App. LEXIS 206

• Court: Appellate Court of Illinois
• Decided: December 21, 1909
• Docket: Gen. No. 14,719
• Status: Published

Opinion

Mr. Justice Smith

delivered the opinion of the court.

The correct solution of the controversy in this cause turns upon the question whether the defendant, appellee, waived the time fixed in the contract for ordering the malt by the plaintiff.

“A waiver is the intentional relinquishment of a known right, and there must be both knowledge of the existence of the right and an intention to relinquish it. Hoxie v. Ins. Co., 32 Conn., 40; Lewis v. Ins. Co., 44 Conn., 72; West v. Platt, 127 Mass., 372”. Perin v. Parker, 25 Ill. App. 465; affirmed in 126 Ill. 201. A waiver may be by such conduct as warrants an inference of the relinquishment of such right. Cole v. Dial, 12 Tex. 100; Findeisen v. Metropole Fire Ins. Co., 57 Vt. 520; Peninsular Land T. Co. v. Franklin Ins. Co., 35 W. Va. 666; Moline Malleable Iron Co. v. McDonald, 38 Ill. App. 589; Stow v. Russel, 36 Ill. 19; Vroman v. Darrow, 40 Ill. 171; Frost v. Thompson, 18 Ill. App. 410.

Where time of performance is of the essence of the contract, a party who does any act inconsistent with the supposition that he continues to hold the other party to his part of the agreement will be taken to have waived it altogether. King v. Wilson, 6 Beav. 124; Baker et al. v. The Bishop Hill Colony, 45 Ill. 264; and cases cited in 29 Am. & Eng. Ency. of Law, Vol. 29, p. 1104. When a specific time is fixed for the performance of a contract and is of the essence of the contract and it is not performed by that time, but the parties proceed with the performance of it after that time, the right to suddenly insist upon a forfeiture for failure to perform within the specified time will be deemed to have been waived and the time for performance will be deemed to have been extended for a reasonable time. King v. Radeke, 175 Ill. 72; Moline Malleable Iron Co. v. McDonald, supra. On the other hand a waiver will not be implied from slight circumstances, but must be evidenced by an unequivocal and decisive act clearly proven. If the act or acts relied on is not of such a character, or is not inconsistent with the enforcement of the right claimed to have been waived or an intention to rely upon it, no waiver is established.

Applying these principles to this case, we find that the contract which forms the basis of this action contains the following clause: “When to be shipped: as ordered during the season ending Dec. 31, 1906. ” The rights of the parties depend upon the legal effect of this provision, and the actions of the parties with reference to it.

This provision must, of course, be construed in connection with the balance of the contract, which is, we think, an executory contract for the sale of 15,000 bushels of malt, as the plaintiff should order it delivered during the season named. It was the clear intention of the parties that the buyer was to take, and that the seller was to deliver, that amount of malt. No option is given by the contract to the buyer to take less, or to the seller to deliver less than that amount. The buyer, under the first part of the clause above quoted, had the privilege to order the malt delivered at any time during the season, thus regulating the delivery to suit its convenience. The seller, on the other hand, had the right to compel the performance of the contract, on the part of the buyer, on or before December 31, 1906, for, although time is not made the essence of the contract by an express provision to that effect, in our opinion, time was of the essence of this contract. Time is generally of the essence in mercantile contracts. Williston on Sales, secs. 189, 453, 457.

The record shows that on December 31, 1906, only about sixty-one hundred bushels of the fifteen thousand had been ordered by the plaintiff. For this substantial breach of the contract, it is clear that the defendant could have refused to deliver malt on orders made after December 31, 1906; and we think it equally clear and well settled under the authorities cited supra, it could waive the breach and the time specified, and go on with the performance, the time limit being, as we have stated above, for its benefit only. Williston on Sales, sec. 192.

The question then resolves itself into this inquiry— did the defendant waive the time fixed in the contract for ordering the malt? If it did waive the time it is clearly in default for refusing to complete the delivery of the malt and treating the contract as canceled on March 14, 1907.

The evidence in the record shows, first, that prior to the execution of the contract in question the plaintiff purchased malt from the defendant under a former written contract, which by its terms expired on March 15, 1906; but, that under such former contract the plaintiff continued to order, and the defendant continued to deliver, malt until September 1, 1906, more than five months after the expiration of the contract, and for six months after the date of the contract sued on in this case. Second, after December 31, 1906, without comment by either party, the plaintiff continued to order and the defendant continued to accept the orders and to deliver malt in the same manner as before that date, and until March 14, 1907. There were many orders and many deliveries during that period of two months and a half. And from December 31, 1906, the market price of malt exceeded the contract price and was steadily going up. That the orders and the deliveries during January, February and March, 1907, were made under the contract sued on is made clear beyond any question by the bills for these deliveries sent by the defendant, and by its letter of March 14, 1907.

We think that the uncontroverted evidence of this continued course of conduct warrants the inference that the defendant intended to relinquish its known right to refuse to deliver malt, under the contract, on orders given after December 31, 1906, and to waive the time limit of the contract. Such an extension or waiver need not be shown by an express agreement between the parties; it may be shown by their acts and conduct in respect thereto. It may be shown by facts and circumstances sufficiently indicating an intention to waive. Frost et al. v. Thompson et al., supra, citing Vroman v. Darrow, 40 Ill. 171.

We think the authorities cited above are a sufficient answer, without further discussion, to the contention of the Malting Company that after the time of the performance of a contract has passed, any arrangement made between the parties for performance at a different time is not binding, unless supported by a new consideration, as applied to the facts of this case.

The position taken by the defendant apparently was that it could, at its option, continue the contract in force for such a period of time as it deemed advisable, and then, when it no longer deemed it expedient so to do, it could cancel the same, arbitrarily, without notice to, or consultation with, the plaintiff. This position is not tenable, in our opinion. The defendant had a right of election immediately after December 31, 1906, whether it would continue to deliver malt under the contract, or cease delivery, but having exercised that right by electing to consider the contract to deliver as still binding and in full force, it could not recall that election, and cancel the contract, as it attempted to do by its letter of March 14, 1907, without giving reasonable notice of its intention. King v. Radeke, supra. In refusing to deliver the remaining 3974 bushels called for by the contract, the defendant was guilty of a breach of its contract, and the plaintiff is entitled to recover damages measured by the difference between the contract price and the market price at the date of the breach. According to the evidence this difference was thirty-four cents a bushel, making the plaintiff’s damages $1,351.16. Deducting from this sum the amount of the defendant’s set-off for malt delivered under the contract and not paid for, $1,330.95, there is left a balance of $20.21, for which amount the defendant is indebted to the plaintiff, and the plaintiff is entitled to judgment therefor. The judgment of the Municipal Court is therefore reversed and judgment will be entered in this court in favor of the Globe Brewing Company and against the American Malting Company for $20.21.

Reversed and judgment here.