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Fullerton v. Robson

OPINION FILED MAY 19, 1978.

LEE F. FULLERTON ET AL., INDIV. AND D/B/A FULLERTON COAL COMPANY, PLAINTIFFS AND COUNTERDEFENDANTS-APPELLEES,

v.

JOHN H. ROBSON ET AL., INDIV. AND D/B/A MARQUETTE COAL & MINING CO., DEFENDANTS AND COUNTERCLAIMANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES A. GEROULIS, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 14, 1978.

Defendants (Marquette) appeal from a judgment awarding plaintiffs (Fullerton) $51,366 in damages for breach of contract and denying their counterclaim. On appeal Marquette contends that (1) the trial court erred in admitting irrelevant and prejudicial evidence; (2) the trial court improperly excluded certain exhibits and testimony; and (3) the jury verdict is against the manifest weight of the evidence.

At trial the following pertinent evidence was adduced.

For the plaintiffs

Plaintiff Lee Fullerton on his own behalf

He is a coal broker or wholesaler who sells coal directly from the mines to coal retailers. During 1970 he sold coal to Marquette on a continuing basis in response to phone orders from William Robson. The coal, all of which was "Hi-Glo" stoker, was shipped directly from the mines to Marquette. In late October, 1970 Robson requested that Fullerton stop coal shipments, explaining several weeks later that Marquette's customers had been complaining about the coal. Although he has demanded payment, Marquette has refused to pay $51,366 for coal which it ordered and received.

On cross-examination he admitted that in a phone conversation with Robson and in a confirming letter, he agreed to sell Hi-Glo #3 coal to Marquette. Although he does not recall telling Robson a different kind of coal would be shipped, he does state that all stoker coal is basically the same. He admits that in his deposition he stated he would have no way of knowing whether the coal shipped to Marquette conformed to his original proposal.

Richard M. Mac Donald

He managed nine apartment buildings which were using Marquette coal in 1971. Because Marquette raised the price of coal, he changed to another supplier at a lower price. The price of the coal was the only reason he changed suppliers.

On cross-examination he admitted that the owner of one building had questioned the grade of coal supplied by Marquette.

For the defendants

William Robson, Jr., on his own behalf

He is a partner in Marquette with responsibility for purchasing coal. He began purchasing "Hi-Glo" stoker coal from Fullerton in 1968, having determined it met customer needs. During the fall of 1970 he received an unusual number of complaints about the coal and ordered Fullerton to stop shipments. However, a large quantity of previously delivered Fullerton coal was stocked in the Marquette yard. In order to make this coal suitable for customer use he had to mix it with better coal, borrowing $500,000 to ...


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