"[f]or further discussion." Id. Once again, this
language fails to indicate that a contract had already been made. In
fact, the message that circulated around Consolidation Coal Company on
March 12, 2001 posed a question as to whether the company should allow
CILCO "a − 10% annual quantity option." Id. By indicating that the
quantity term was still negotiable, this evidence directly contradicts
CILCO's assertion that the parties had already entered into an oral
contract governing quantity on December 14, 2000.
Similarly, the email sent by Bach to Isbell on April 25, 2001 states
that the attached contract "is the latest Draft Agreement incorporating
all of the changes discussed on 4/24/01." Isbell Aff. Ex. 17. It
specifically lists "Tonnage and Term" and "Coal Quality" as "primary
issues to resolve." Id. Consol changed the quantity term in the attached
contract so that the total tonnage over the course of two years was
1,590,000 tons instead of 1,500,000 tons with the option of adding 90,000
tons as it was before. Id. Thus, rather than corroborating CILCO's
testimony that the parties already had an oral agreement as to these
terms, the emails on which CILCO relies directly contradict this
Finally, the email sent by Bach to Isbell on April 24, 2001 merely
forwards a message from the manager of Market Development at CONSOL
Energy Inc. outlining general comments and concerns regarding the draft
contract. Isbell Aff. Ex. 16. Like the others, this email contains no
language that would lead to an inference that a contract already
In sum, none of the emails sent by Bach to Isbell in the early months
of 2001 satisfy the statute of frauds. Furthermore, none of the emails or
CSIS documents are "so connected, either physically or otherwise, as to
show by internal evidence that they relate to the same contract." Western
Metals Co. v. Hartman Ingot Metal Co., 135 N.E. 744, 745 (Ill. 1922). The
CSIS documents indicate a contract for the sale of 1,500,000 tons of
coal, while the emails indicate a tentative contract for the sale of
1,590,000 tons of coal. They do not expressly reference each other, they
were never physically connected, and to the extent they contain
conflicting terms, they do not really make sense when read together.
Unlike the two cases cited by CILCO on page 13 of its Reply brief, the
two sets of documents in this case do not contain the same specific
details. See Jones v. Olsen, 400 N.E.2d 665, 667 (Ill.App.3d Dist.
1980); Shugan v. Colonial View Manor, 437 N.E.2d 731, 737 (Ill.App. 1st
Dist. 1982). Therefore, they cannot be considered together when
determining whether they satisfy the statute of frauds.
V. CILCO's February 22, 2001 Email
As a last attempt, CILCO argues that the email sent by Isbell to Bach
on February 22, 2001 satisfies the merchant's exception to the statute of
frauds. See 810 ILCS 5/2-201(2); supra p. 5. The email contains the
heading "CONSOL CONTRACT," followed by a list of months and numbers.
Isbell Aff. Ex. 19. It also contains a small note that says, "John, Feb
and March reflect original schedule." Id.
The Court finds that this email is insufficient to satisfy the
requirements of the merchant's exception. First, it contains no
explanation of the alleged contract whatsoever. It merely contains a list
of months and numbers. While CILCO may find it "obvious" that "the
numbers in the email . . . reference tons of coal to be delivered by
CONSOL to CILCO during 2001," the Court does not find it so obvious,
especially considering the email does not even mention the word "coal" or
the year 2001. Second, the email is not sufficient to bind
the sender. 810 ILCS 5/2-201(2). It says nothing about any obligation of
CILCO to receive or pay for anything. Therefore, the February 22, 2001
email does not satisfy the merchant's exception to the statute of frauds.
For the foregoing reasons, Consol's Motion for Summary Judgment [#14]
is GRANTED, and CILCO's Cross-Motion for Partial Summary Judgment on the
Issue of the Statute of Frauds [#29] is DENIED.
Consol's Motion for Leave to File Supplemental Brief [#39] is DENIED.
The Court finds that CILCO's Reply in Support of Its Cross-Motion for
Partial Summary Judgment was properly filed, and therefore denies
permission to Consol to file a supplemental memorandum in response to
CILCO's Reply. See Local Rule 7.1.
This matter is terminated.