APPEAL from the Circuit Court of Sangamon County; the Hon.
JAMES T. LONDRIGAN, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 8, 1979.
Defendant, City of Springfield, appeals from an order of the circuit court of Sangamon County which granted plaintiff's motion for summary judgment. In that order, the trial court found that no contract for the delivery of coal was formed between the plaintiff coal broker, Tecumseh International Corporation (Tecumseh) and the City of Springfield (City). Accordingly, judgment for Tecumseh was entered in the amount of $28,056.45 for coal accepted by and retained by the City. In addition, the court ordered the City to return Tecumseh's $5,000 deposit.
It is necessary to set forth the facts of this case in detail. Those facts reveal that on January 14, 1977, the City tendered to Tecumseh a proposed contract for the purchase of coal. The following day, Tecumseh's attorney contacted the City's attorney who had drafted the contract and stated that the City's proposed contract was not acceptable and that certain revisions would have to be made before Tecumseh would approve the form of the contract. The general manager of City Water, Light and Power of the City of Springfield (General Manager) was informed of the fact, but not the substance, of a phone conversation with Tecumseh's attorney.
On January 19, 1977, Tecumseh's president delivered to the General Manager a new proposed contract which was prepared by its attorney and which contained the requested revisions. That proposed contract was signed by Tecumseh's authorized agent. The president pointed out the changes to the General Manager and told him that Tecumseh did not want the contract unless the changes were agreeable and included in the contract.
The four differences in the two proposed contracts are as follows:
(1) First paragraph under PRICE, first sentence: The City's tendered contract reads "F.O.B. carrier." Tecumseh's tendered contract reads "F.O.B. carrier at the mine."
(2) First paragraph under PRICE, second sentence: Tecumseh's tendered contract adds the word "if" preceding the clause "Seller agrees to deliver the coal to the Springfield, Illinois Power Plants * * *." The word "if" was not included in the City's tendered contract.
(3) Fourth paragraph under PRICE: The City's tendered contract reads "F.O.B. carrier." Tecumseh's tendered contract reads "F.O.B. carrier at the mine."
(4) Fourth paragraph under PRICE: The City's tendered contract ends with the phrase, "as above provided," which is not in Tecumseh's tendered contract.
Included in both proposed contracts was the provision that Tecumseh would deposit with the City a certificate of deposit in the amount of $5,000 pledged to the City as security for adequate and timely performance of the contract. In accordance with that provision, Tecumseh tendered to the City on January 19, 1977, a certificate of deposit for $5,000 assigned to the City. In return, Tecumseh received a receipt for the security deposit.
On January 25, 1977, the Springfield city council passed an ordinance approving the contract in the form initially tendered by the City without the revisions requested by Tecumseh. Apparently, the City ignored Tecumseh's proposed contract with the requested changes tendered on January 19, 1977.
A fuel buyer for the City subsequently contacted representatives of the coal mine supplying the coal for the contract and directed them to ship coal on behalf of Tecumseh to the City. During the first two weeks of February 1977, coal was shipped by the mine directly to the City.
On February 17, 1977, the City sent three copies of the contract prepared by it and approved by the Springfield city council along with a letter noting that a condition to the valid execution of the contract was a production of a binding contract between Tecumseh and the coal mine as evidence of Tecumseh's ability to supply coal to the City. The City's reference to a binding contract ...