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06/30/88 Allsopp Sand & Gravel, Inc v. Lincoln Sand & Gravel

June 30, 1988

ALLSOPP SAND & GRAVEL, INC., PLAINTIFF-APPELLEE

v.

LINCOLN SAND & GRAVEL COMPANY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

525 N.E.2d 1185, 171 Ill. App. 3d 532, 121 Ill. Dec. 878 1988.IL.1054

Appeal from the Circuit Court of Logan County; the Hon. Gerald G. Dehner, Judge, presiding.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. McCULLOUGH and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

Plaintiff Allsopp Sand and Gravel, Inc. (Allsopp), filed suit in the circuit court of Logan County alleging defendant, Lincoln Sand and Gravel Company (Lincoln), failed to pay for the balance of sand due under an existing contract. The trial court rendered a verdict for Allsopp and entered judgment against Lincoln in the amount of $45,240.36. Lincoln appeals and we reverse.

The two parties in this action are competitors in the sand and gravel business. John and Jay Owensby, father and son, own and operate Allsopp. In the spring of 1986, when Lincoln's dredge became inoperable, one of Lincoln's owners, Paul Robert Orr (Orr), approached the Owensbys and offered to purchase sand from Allsopp so Lincoln could meet its customers' needs for the upcoming construction season.

The parties entered into a contract in March of 1986 wherein Allsopp agreed to supply and Lincoln agreed to purchase 50,000 tons of FA -- 1 specification sand for $1.20 per ton. The contract stipulated the volume requirement would be waived if the sand was not of FA -- 1 quality. Lincoln agreed to pay the balance due under the contract by December 31, 1986, and to take delivery of the remaining tonnage of sand by the spring of 1987. The sand was to be loaded out to Lincoln's trucks during Allsopp's regular business hours (7:30 a.m. to 3:30 p.m., Monday through Friday) and during the regular operating season (March through November). Loading out at other times was to be by "special arrangements."

During March and April of 1986, Lincoln took delivery and paid $14,759.64 for 12,299.7 tons of Allsopp sand. The balance due under the agreement, $45,240.36, was not paid by December 31, 1986. On February 19, 1987, Allsopp filed its complaint in the circuit court of Logan County for breach of contract and asked for judgment against Lincoln in the amount of the contract balance.

Lincoln filed an answer containing general denials and affirmative defenses. Lincoln alleged Allsopp (1) did not supply sand of the quality specified in the contract and (2) wrongfully refused to make "special arrangements" to load out sand at the original contract price before the contract expired, but at a time outside Allsopp's regular operating season.

The evidence presented at the bench trial was as follows.

Lincoln returned six loads of sand to Allsopp on March 31, 1986, because the sand contained mud. Allsopp gave Lincoln credit for the loads and paid for the cost of the return trucking. Lincoln continued to take deliveries from April 1 through April 18, 1986, without complaint. Allsopp's sandpit closed for the season on November 26, 1986.

Jay Owensby testified that Orr contacted him the second week in December of 1986 and requested to load out the remaining sand due under the contract. Jay told him the pit was closed and he did not have the manpower to load out at that time. Jay said Lincoln would have to pay 25 to 30 cents more per ton to load the sand in December.

Orr then called the elder partner, John Owensby, and the two attempted to negotiate a special arrangement. John testified he told Orr they would have to charge Lincoln extra for a load out in December because Allsopp would have to recall employees and pay them at union wage. Orr offered to pay five cents more per ton and to supply one of Lincoln's employees to facilitate the loading process. The Owensbys refused the offer. During a subsequent conversation in the latter ...


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