Whiting Foundry Equipment Co. v. Hirsch (121 Ill. App. 373, 1905)

Mr. Justice Brown

delivered the opinion of the court.

In this case a judgment was rendered in favor of the appellee against appellant in the Circuit Court of Cook county for $361.50 and costs on the verdict of a jury. From this judgment the appellant, the defendant below, has appealed to this court, assigning as error the improper admission and exclusion of evidence, the giving of erroneous and refusal of proper instructions, the denial of motions for a new trial and in arrest of judgment, the inconsistency of the verdict with the weight of the evidence and the law, and irregularity in the order of argument to the jury.

This last matter was within the discretion of the court, and we should not interfere with the judgment on account of any such irregularity even if it existed, unless it appeared that the appellant had been injured thereby.

The other objections raised to the judgment can he best considered in connection with a brief discussion of the facts and the merits.

The plaintiff and appellee, Hirsch, was an established dealer in scrap iron. His business .involved or included buying scrap iron from such sources, far or near, as he could get it from, and reselling it at a profit, and apparently often, as would be natural, forwarding it to purchasers in the car lots in which it was shipped to him or at his order on his purchase. The defendant and appellant was a foundry company using scrap iron and doing business at Harvey, Illinois. February 27, 1901, the defendant wrote to the plaintiff ordering 350 tons Ho. IE. E. or machinery east scrap (a term apparently well understood in the scrap iron trade), to he free from certain things evidently common in scrap iron and considered objectionable in such as is bought for foundry purposes. The order concluded: “Delivery to be made in March, April, May, June, July and August, 1901, in equal quantities each month. Price and terms $13.00 per ton, f. o. b. Harvey, Sixty Days. Ship to us Harvey, Ill., as above.” March 1st the plaintiff, Hirsch, acknowledged the receipt of the order and accepted the same as satisfactory, excepting that the price was to he $13 net ton instead of $13 a ton. The letter of acknowledgment concludes : “I have inserted the word 'net.’ ” As to the exact meaning or effect of this change it is not necessary for us to inquire, as no objection was made to the insertion and the plaintiff went ahead under the contract thus made and shipped material as follows: By March 16, 1901, the plaintiff had shipped, presumably from various points, three carloads of scrap containing about 85 tons, to the defendant, who had rejected it all as not up- to the quality called for by the contract. But the defendant said nothing then about annulling the contract, and on March 19 received and accepted another carload, containing about 18 tons, and shortly afterward received and accepted about 24 out of 27 tons contained in another car. This 42 tons defendant then notified plaintiff was all it could handle in March. The defendant reminded plaintiff that the stirap was to