Appeal from the Circuit Court of McLean County; the Hon.
Luther H. Dearborn, Judge, presiding.
JUSTICE SPITZ DELIVERED THE OPINION OF THE COURT:
Plaintiff, Maurice Transport Company, Inc., brought an action in the circuit court of McLean County against defendant, Amoco Oil Company, Inc., claiming damages for the alleged breach of a shipping contract. Thereafter, both parties filed motions for summary judgment. The circuit court entered summary judgment for the defendant. Plaintiff now appeals, contending that a genuine issue as to a material fact exists and that it was entitled to a judgment as a matter of law. For the reasons that follow, we affirm the judgment of the circuit court.
The instant record reveals that plaintiff, Maurice Transport Company, Inc., is a contract carrier operating in the State of Illinois. Plaintiff holds a contract carrier's permit issued by the Illinois Commerce Commission (Commission). This permit authorizes plaintiff to transport certain chemicals and petroleum products within the State of Illinois, "pursuant to bilateral written contracts filed * * * with the [Commission]."
On May 26, 1978, plaintiff entered into a bilateral shipping contract with defendant, Amoco Oil Company, Inc. (Amoco). The contract provided, inter alia:
"The COMPANY agrees during the period of this contract to tender for shipment, and the CARRIER agrees to transport * * * such quantities of liquid petroleum products as the COMPANY may require, and amounting to not less than 40,000,000 gallons per year."
This contract was effective for one year and was automatically renewable at the end of that year and each subsequent year, provided neither party terminated the agreement. Any modification or notice of termination was to be in writing by the parties.
Shortly thereafter, plaintiff prepared tariff No. 23, reflecting its rates and several other provisions contained in the shipping contract. Included in tariff No. 23 was the following gallonage requirement:
"(a) Except as otherwise provided, the rates named in Items 310, 455, 470 and 515 are applicable only when shipper tenders to carrier 40,000,000 gallons or more, * * * during a period of twelve (12) consecutive months from date of commencement."
Tariff No. 23 further provided:
"(c) If, during any annual period, the aggregate gallonage requirement of a consignor as specified in paragraph (a) of this Item is not met, a surcharge will be assessed on the billing for the actual gallons transported at rates named in Items 310, 455, 470, and 515 * * *."
On June 9, 1978, both tariff No. 23 and the shipping contract were filed with the Commission, pursuant to section 18-505 of the Illinois Motor Carrier of Property Law (Ill. Rev. Stat. 1977, ch. 95 1/2, par. 18-505).
Approximately one year later, plaintiff sent Amoco a written offer to modify a portion of the contract, which Amoco executed and agreed to on July 27, 1979. This agreement modified the gallonage requirement from 40 to 100 million gallons per year. On August 10, 1979, plaintiff revised tariff No. 23, reflecting the provisions in the letter agreement, including the 100 million-gallon-tender clause. The revision to the tariff was filed with the Commission, however, the letter agreement was not.
On September 15, 1980, plaintiff again wrote to Amoco, this time offering three different proposals. In its second proposal, plaintiff offered to:
"2. Increase our present rates by 10% and continue to haul all points that we are presently delivering assigned to the Wood River Terminal and ...