Citations
- 94 Ill. App. 353
Full opinion text
Mr. Presiding Justice Shepard
delivered the opinion of the court.
Appellee brought suit against appellant to recover for a shortage in the delivery of dried brewer’s grains, under two contracts between the parties, for the sale and delivery of a quantity of such grains.
The damages claimed was the difference between the contract price and the market price of such grains at their place of delivery, and a balance for an agreed allowance for inferior and damaged grains. The grains were to be delivered, at the option of appellant, in either Hamburg, Antwerp or Eotterdam, Europe.
There does not seem to be any dispute as to the quantity of undelivered grain.
A variance, however, is urged by appellant between the amended declaration and the proofs as to the market price at the date of breach, it being contended that by the declaration appellant had all of December, 1897, in which to make his deliveries, whereas the market price proved is of December 23, 1897, the date of breach.
We think such claim is a misapprehension of the evidence as to the market price being proved as of December 23, 1897.
The witnesses testifying as experts on that subject, did say the market price in Hamburg was 83 marks on December 23, 1897, but also said it was the same at the end of December, and the jury were plainly justified in so finding.
It is next insisted that all the evidence on the subject of market price, related to such price in Hamburg alone, and not at either Antwerp or Eotterdam. By the contract, the port of delivery of most of the grains was optional with appellant, at either Hamburg, Antwerp or Eotterdam. He might have exercised his option in that regard, if he had chosen to do so. But the law is that one having an election or option of such a character, must exercise.it within the time permitted, or such right becomes forfeited.
Under the head of election of rights or remedies, it is said, in Bouvier’s Lawr Dictionary:
“ On the failure of the person who has the right to make his election in proper time, the right passes to tpe opposite party.”
And in 6 Am. & Eng. Ency. of Law (1st Ed.), p. 251, it is said:
££ One who has the option of two or more ways in which to fulfill an obligation, must make his election before the time for performing the obligation passes, or the right to elect will be lost.”
Again, it is said in Wharton on Oontracts, Sec. 622:
££ The election is limited by -its own terms. When the party having the option is bound to exercise it within a given period, if he lets that period elapse without exercising the option, the right is forfeited. The same distinction is applicable to place. If the right to perform an alternative at a particular place is not complied with,