Appeal from the Circuit Court of Champaign County; the Hon.
FREDERICK S. GREEN, Judge, presiding. Reversed and remanded with
CRAVEN, P.J., DELIVERED THE OPINION OF THE COURT.
Rehearing denied January 26, 1970.
Swift & Company appeals from a judgment of $26,920 in favor of Tri-County Grain Terminal Company on a claim for the value of soybeans delivered under a contract between the parties, and from a second judgment entered in favor of Tri-County Grain Terminal Company on an order setting aside a jury verdict of $53,240 for Swift & Company on its counterclaim against Tri-County Grain Terminal Company for damages for soybeans not delivered by Tri-County.
Tri-County Grain Terminal Company, operating a grain-elevator company, had a fleet of six grain trucks used to transport grain in connection with its terminal storage facilities and for hauling to and from local elevators. It had contracted with Swift & Company to deliver certain truckloads of soybeans containing an approximated number of bushels, within a fixed period of time, to Swift's soybean mill at Champaign where the latter manufactured soybean oil and meal.
The soybeans were received by Swift & Company and measured in accordance with the usual custom and practice in the grain industry existing throughout central Illinois. Incoming grain trucks were driven onto a scale platform and weighed to obtain a gross weight. The truck was then moved off the scales and the soybean contents of the truck dumped into a pit from which they were carried by conveyor belt into large storage tanks and commingled with other incoming grain. After dumping the beans the truck returned to the scale and was reweighed empty to get an empty or "tare" weight. The parties accepted the net weight, i.e., the difference between "gross" and "tare," as accurately representing the quantity of soybeans delivered, as is the established custom and practice.
To deliver the soybeans to the Swift & Company mill Tri-County used two oversized tractor-trailer trucks identified as Units 1 and 4. Each unit consisted of a General Motors Diesel tractor coupled with a 38-foot dump trailer equipped with a hydraulic hoist. The trailer was attached to the tractor by means of a large steel plate called the "5th wheel." The trailer was equipped with landing legs and small forward wheels, called "dollies," by which it was supported when detached from the tractor. When coupled together as a tractor-trailer unit, the unit was 54 feet long. Because of the length of each of these units it could not be weighed on the Swift & Company 45-foot scale platform.
To measure the quantity of soybeans delivered in a truckload the driver positioned his trailer on Swift's scale, lowered its "dollie" wheels, and uncoupled the tractor at the 5th wheel. The tractor then was driven off the scale platform and the trailer weighed separately. Hose and other flexible connections between the tractor and trailer were left in place. After weighing the trailer the tractor was backed up on the platform and reattached to the trailer at the 5th wheel. The truck was then taken to the dump area, the forward end of the trailer elevated, and the contents cargo dumped into the large pits. Since the Tri-County units were too large to be accommodated there, its trailers were dumped by use of their own internal hydraulic hoists.
After the soybeans were unloaded, the trailer body was lowered and the truck driven to the scale platform where the trailer again was detached from the tractor, the tractor driven from the scale platform, and the trailer reweighed.
The determination of the number of bushels of soybeans delivered was made by weight by subtracting the empty weight or "tare" of the trailer from its loaded weight or gross. The difference was the weight of the soybeans delivered.
In the foregoing manner Swift received from Tri-County 248 truckloads of soybeans between the dates in question April, 1965, and December 29, 1966. It settled and paid Tri-County for 242 of these truckloads at the agreed contract price per bushel, but refused to pay for the remaining truckloads.
Swift & Company introduced evidence showing that Tri-County had ordered these two tractor-trailer units to be built specially by Converto Manufacturing Company with a 1,000-gallon liquid storage tank installed in the nose of each trailer, measuring 5' X 4 1/2' X 7'. A second tank fitted on the back of the tractor had a small sleeper compartment built on its top. The tanks and fittings on Unit 4 were shown to have increased the basic cost of the unit from $9,000 to more than $19,000. The trailer tank was formed by a bulkhead and top with a separate partition and with a short tarpaulin covering the storage tank under the large tarpaulin which covered the entire trailer bed.
The evidence shows that from April, 1965, to March, 1966, Tri-County made all of its deliveries to Swift in Unit 1 and in both Units 1 and 4 from March, 1966. The storage tanks were removable but the evidence shows that they were left in place in the nose of the trailer interconnected with the storage tanks on the back of the tractors without removal.
During the times the units were so used they were frequently repaired for leaks by the manufacturer and by Freuhaul Trailer Company at Peoria. The cost of some of these repairs and payment of such items by Tri-County was shown in evidence.
Swift's bean grader, who was the only Swift employee to inspect either trailer, on occasions removed the large tarpaulin from the trailer bed, but he did not become aware of the short tarpaulin covering the trailer storage tanks nor the tanks themselves. He testified that he did observe the partition in the nose of Unit 1 trailer. Upon inquiry he was informed by the Tri-County Unit 1 driver that the partition had been installed to prevent loading the truck all the way to the front so as not to be "too heavy" at the nose of the hydraulic cylinder to lift and to dump. On one occasion when the bean grader mentioned a leak in the connecting hose between the trailer and tractor, the driver told him he was carrying "liquid fertilizer." On ...