Weber Chimney Co. v. Brunswick-Balke-Collender Co.

195 Ill. App. 9

• Court: Appellate Court of Illinois
• Decided: October 5, 1915
• Docket: Gen. No. 20,813
• Status: Published

Opinion

Mr. Justice Barnes

delivered the opinion of the court.

2. Contracts, § 322*—what not equivalent to breach. Where a contract provided that plaintiff should construct a chimney for defendant “in about fifty working days,” and also expressly provided that the time named shall be contingent upon causes of delay beyond the control of plaintiff, and where plaintiff refuses to agree to complete the construction within a named time at the request of defendant, such refusal does not amount to a renunciation or abandonment of the contract by plaintiff, for the reason that plaintiff had a right to anticipate that the character of the work and the season of the year, which was winter, may cause delays which are excusable under the provisions of the contract and which may prevent the completion of construction within such named time. 3. Contracts, § 319*—when breach does not arise before time for performance. In an action to recover on a contract whereby plaintiff agreed to construct a chimney for defendant in “about fifty working days,” and where defendant sought to cancel the contract claiming breach by plaintiff, the question whether evidence that a special meaning of the term “working days” obtained in the construction trade was competent as bearing on the question of a breach is immaterial where it appears by applying defendant’s construction of the words to the facts in the case that no breach had taken place when defendant canceled the contract. 4. Appeal and error, §1392*—when refusal of peremptory instruction not error. In an action to recover on a contract whereby plaintiff agreed to construct a chimney for defendant in “about fifty working days,” where the facts proved did not amount as a matter of law to a renunciation of the contract by plaintiff, peremptory instruction for defendant held erroneous.