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67 Ill. 222

Richards v. Shaw

Illinois Supreme Court

Decided January 15, 1873

Illinois Supreme Court · decided 1873-01-15

James Steele, Judge, presiding. This was an action of assumpsit, by Samuel Shaw against Sandford and Seldon Richards, to recover the price of corn sold and delivered. The facts appear in the opinion.

Key passage — most relied on by later courts

““It is a rule supported by the weight of modern authority, that, if the buyer of a specified quantity of goods sold under an entire contract, receive a part thereof, and retain it after the seller has refused to deliver the residue, there is a severance of the entirety of the contract, and the buyer becomes liable to • the seller for the price of such part; but he may reduce the seller’s claim by showing that he has sustained damage by the seller’s failure to fulfill his contract.” R. N. Benjamin’s Principles of Sales, p. 146, § 3, and eases cited.”

quoted by 2 later decisions, including United States ex rel. Hudson River Stone Supply Co. v. Molloy, Bankers Life and Casualty Company v. Bellanca Corporation, Bellanca Corporation, Counter-Claimant-Appellee v. Bankers Life and Casualty Company, Counter-Defendant-Appellant. Bellanca Corporation, Counter-Claimant-Appellant v. Bankers Life and Casualty Company, Counter-Defendant-Appellee

“Although this rule may be a relaxation of the earlier and more generally received doctrine, that the entire performance, on the part of the vendor, of such a contract as the one in question, is a condition precedent to the payment of the price, and the maintenance of an action for its recovery, the rule seems to be a fair and just one, and we are disposed to give it our acquiescence.”

quoted by 1 later decision, including Bankers Life and Casualty Company v. Bellanca Corporation, Bellanca Corporation, Counter-Claimant-Appellee v. Bankers Life and Casualty Company, Counter-Defendant-Appellant. Bellanca Corporation, Counter-Claimant-Appellant v. Bankers Life and Casualty Company, Counter-Defendant-Appellee

Relies on Evans v. Chicago & Rock Island Railroad · Booth v. Tyson

Good law ✅— No negative treatment on recordhow we know

Decided 1873-01-15

How this case has been cited

Cited by 12 later decisions — most recently April 1961

3 federal appellate · 9 state decisions

301873188018901900191019201930194019501960decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Mr. Justice Sheldon

¶1delivered the opinion of the Court:

¶2This was an action of assumpsit, to recover for 391 bushels of corn sold and delivered. The declaration contained a special count on a contract for the sale of the corn, and also the common counts. The plaintiff below, Shaw, recovered a verdict and judgment for $115.

¶3The testimony in the case showed a contract, on the part of Shaw, made in March, 1867, to sell to Sandford and Seldon Richards 500 bushels of corn at the price of 50 cents per bushel. Shaw delivered only 391^0 bushels of the corn, about 30 bushels of it the last of April, 1867, and the rest in June, 1867. The price of corn on the 5th of May, 1867, which the Richards claim to be the time of delivery, was 75 to 80 cents per bushel; and in June, 1867,'at the time Shaw delivered all but the 30 bushels, it was 45 to 48 cents per bushel.

¶4There seems to be no material contradiction in the testimony, except upon one point, the time of delivery under the contract. Shaw testified that the time of delivery was not fixed by the contract, although he admits that about the first of May was understood to be the time for the delivery of the corn, but that he would not make a positive agreement for the delivery at that time. Sandford and Seldon Richards both testified positively that, by the contract, the corn was to be delivered by the 5th day of May, 1867, and Orin Richards testified that it was to be delivered the first of May.

¶5The clear weight of the testimony is, that the time of delivery was fixed by the contract to be by the 5th of May, 1867.

¶6The appellants make two points for reversal of the judgment: First, that the plaintiff below could not recover without showing the completion of the contract under which the corn was delivered. Second, that the verdict is against the evidence.

¶7There was a manifest failure on the part of Shaw to complete his contract, yet we are inclined to hold that he was entitled to his action, as upon an implied contract, for the portion of the corn he did deliver.

¶8It is a rule, supported by a very respectable weight of modern authority, that, if the vendee of a specific quantity of goods sold under an entire contract, receive a part thereof, and retain it after the vendor has refused to deliver the residue, this is a severance of the entirety of the contract, and the vendee becomes liable to the vendor for the price of such part; but he may reduce the vendor’s claim by showing that he has sustained damage by the vendor’s failure to fulfill his contract. Oxendale v. Wetherell, 9 Barn. & Cressw. 386; Shipton v. Casson, 5 ib. 378; Booth v. Tyson, 15 Vt. 515; 2 Story Con. sec. 847; 2 Parsons Con. 668, and cases cited in note; Bowker v. Hoyt, 18 Pick. 555.

¶9Although this rule may be a relaxation of the earlier and more generally received doctrine, that the entire performance, on the part of the vendor, of such a contract as the one in question, is a condition precedent to the payment of the price, and the maintenance of an action for its recovery, the rule seems to be a fair and just one, and we are disposed to give it our acquiescence. It seems heretofore to have received recognition by this court. Evans v. Chi. and R. I. R. Co. 26 Ill. 189.

¶10Assuming that the time fixed by the contract for the delivery of the corn was by the 5th day of May, the verdict was manifestly-against the evidence.

¶11The damage sustained by the defendants below by the failure to deliver 470 bushels of corn within the time specified by the contract, when corn was worth 75 to 80 cents per bushel, would amount at least to some $117. Defendants had, besides, an undisputed set-off of $40.90. These two items deducted from the contract price of the corn delivered would leave only about $40 due the plaintiff below, instead of $115, as found by the jury.

¶12The judgment must, therefore, be reversed and the cause remanded.

¶13Judgment reversed.

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