dissenting:
The. majority, in reversing the findings of the Master and the Decree of the Chancellor, do so on the sole basis that the issues were of law and not of fact. The majority opinion thus avoids determining this appeal on the manifest weight rule. I cannot agree with this narrow conception. Rather, I believe this appeal does present questions of fact and that there is substantial evidence to support the Decree and findings. However, even if I were to agree with the majority that the contract is embodied in the letters of July 9th and 14th, I would still feel that the judgment below should be affirmed.
The Master found the issues generally for the plaintiff and allowed plaintiff $12,661.62 as eosts for alterations and additions made on defendant’s equipment, together with $475 for the completion of 72 mats of Hexarmour at the contract price, and storage charges in the amount of $100 per month for a certain period. Plaintiff’s additional claim for $40,000 for the interruption of an established business was disallowed. Defendant appealed and plaintiff cross-appealed.
This controversy does not involve a formal contract, executed by both parties and embodying all of each party’s rights under one document. The written memoranda, the four letters set forth in the majority opinion, do not, in themselves, clearly define each party’s rights, understandings and liabilities under the contract. On the contrary, in order to arrive at the true understanding of the parties, it was necessary and proper, in my opinion, for Master James Leaton to admit such evidence of the surrounding circumstances as would aid him and the court in arriving at the true meaning of the parties. I do not believe the rule against the admission of parol evidence has any applicability in the instant case.
To better understand this controversy it is necessary to examine the actions of the parties both prior and subsequent to the exchange of letters. It is undisputed that Weiland had not previously made either Hexsteel or Hexarmour and that Whitney was seeking someone to manufacture Hexarmour on his, Whitney’s, machinery and equipment. Weiland was introduced to Whitney by Adolph Bedner, who had been in the employ of Whitney during the previous year.
Bedner testified that he became familiar with Hexarmour during his employment with Whitney and that upon the termination of this employment, Whitney told him he would give him a commission if he, Bedner, found someone to manufacture Hexarmour. Bedner said he visited many tool and die factories on the Northwest side of Chicago for that purpose and to get himself a job and that is how he located Weiland. After the initial contact, he telephoned Whitney. The following day, about July 1,1954, Whitney and Bedner went to Weiland’s plant. This was Weiland’s first meeting with Whitney and Bedner testified that Whitney did most of the talking, explaining how the Hexarmour machinery would be set up, how he would be able to get orders that would keep Weiland’s plant busy day and night, using three shifts.
Whitney, who is an attorney, testified pro se. He said that he gave up practicing law in 1952 and that upon leaving the Klemp Company, he set up his own plant in Chicago until a fire caused him to discontinue business. He said he then placed advertisements in the newspapers for someone to manufacture “a steel article.” In the meantime, he made arrangements with one Carl Carlson to manufacture Hexarmour at Carlson’s plant, but after a short time Carlson abandoned the project. It was then that Whitney told Bedner to see about the possibility of finding another manufacturer. Whitney said he gave Bedner the names of firms that had responded to the newspaper advertisement. Whitney stated that when he. visited Wei-land’s plant he had with him several sample pieces of Hexarmour as well as several stainless steel samples of Hexsteel. He also had several catalogs relating to Hexsteel. Whitney said he explained to Weiland that the Hexarmour product was to be the same as Hexsteel except that two little round holes would be eliminated.
In answer to Weiland’s questions as to why Whitney was not manufacturing Hexarmour himself, Whitney said he told Weiland that he had had to close his plant because he was temporarily short of funds. He said he explained to Weiland that he had not lost any money on the Hexarmour program; that he had not gone into production, but “merely got the maehinery set up and made samples, enough to prove to ourselves that the dies would make Hexarmour (Emphasis mine.)
Whitney then explained to Weiland his relationship with the Klemp Company. He said that in 1946 Klemp was doing about $300,000 worth of business, but that when he left in 1951, business had grown to over one and a quarter million dollars a year. He said profits rose from nothing to $153,000 a year, a good portion due to the Hexsteel program. Whitney further testified that he told Weiland that Weiland would have to examine the equipment himself because he, Whitney, was not a tool and die man. He said he explained that the strip die needed work; that parts of the clinching machine were strewn over a large area at Carlson’s plant causing difficulty in locating the pieces; that Carlson claimed some piping was missing and he was probably right; and, that the clinching machine would have to be put together. Whitney said he told Weiland to go to Carlson’s plant and look over the machinery. After this meeting Whitney left for Florida to sell some property and the correspondence set out in the majority opinion followed.
Weiland testified that he is the president and general manager of Weiland Tool & Die Company and that the business consists of using their know how “for the purpose of manufacturing custom made items as designed by our olients’ engineers.” He said he does not manufacture for sale at retail. He. said Bedner and Whitney examined his plant after Bedner, who said he represented Whitney, made the appointment. At this meeting he was shown samples of both Hexarmour and Hexsteel and Whitney explained the details of how the products were manufactured on Whitney’s machinery. Weiland testified that he was told that if he would manufacture Hexarmour Whitney would sell it in carload lots; that when he, Whitney, was with Klemp he brought in enough sales to keep them going three shifts a day, six days a week; that he had connections with the trade industry using the product so that he would be able to get orders for great quantities; and, that he had invested $50,000 in equipment and purchased 300,000 pounds of steel which was on Carlson’s premises on the assurance he would be. able to sell the product. He asked Weiland if there were enough help available to run two or three shifts. Whitney then told Weiland to go to Carlson’s with Bedner to examine the equipment and that time was of the essence. Weiland was assured that although the machinery had been disassembled at Carlson’s, all Weiland would have to do was put it together again, hook it up to electricity and he would be in production.
Weiland said he went to Carlson’s with Bedner to examine the equipment and found it lying around loose. The motors were disconnected, the dies mixed up; practically everything was dismantled. Weiland said it was impossible, under those conditions, to determine if the machinery were operative and could produce Hexarmour and while everything looked all right, he could not tell until he had the machinery assembled and running under power.
In the exchange of letters between July 2nd and July 14th neither party made an unqualified acceptance of the other’s offer although both parties agree that a contract was reached by the exchange of letters. Whitney contends that the contract terms are limited to the letters of July 9th and July 14th. The majority accept this contention, stating that Whitney’s letter of July 9th rejects out of hand the terms embodied in Weiland’s letter of July 2nd. I cannot agree. Bather than being a rejection, the language used in the July 9th letter is actually consonant with the language used in the July 2nd letter and both letters should be considered in determining the contract terms. For example, the price of twenty-two cents per square foot, mentioned in the July 2nd letter, was accepted by Whitney in his July 9th letter. The evidence shows this price was reached on the basis that Weiland would produce the product with equipment and machinery provided by Whitney. The requirement that Whitney furnish all steel was likewise accepted. The matter of freight charges was not settled until the July 14th letters.
The major area of controversy, whether Whitney was to furnish machinery capable of producing Hexarmour or whether Weiland was responsible for putting the machinery in shape to manufacture, even if it required making major alterations and additions, was also settled by this correspondence. Weiland’s letter stated that, “[o]nce installed and producing parts to your satisfaction, we will then maintain, repair and keep up all equipment due to normal wear and tear, but not repair or replace broken parts nor replace the entire unit or units when worn out.” In his letter Whitney stated he would assume the burden of furnishing additional presses or be willing to pay a price higher than the established twenty-two cents if Weiland furnished the additional dies and presses. Whitney’s letter of July 9th states, “I can only tell you that the last sample pieces run off by Carlson looked fine to me. You will have to examine the die and if any adjustments are necessary on it, I will expect you to make them as you will have to continue making them throughout the time that the die is used. Any die that is run continuously with automatic feed, is subject to adjustments from time to time. I gave a complete sample of the Hexarmour as well as the blue prints ... to Carlson . . . The most important thing is that the die and the clinching table will be able to mahe the Hexarmour in accordance with the sample.” The letter further states, “[y]ou, of course, will be asked to maintain, repair and keep up all tools, dies and other equipment, and to sharpen and replace punches as required, and to return all the tools, dies, machinery and equipment to me upon demand when our work is completed, in the same condition as when turned over to you, less normal wear.” Meaning cannot be given these words by treating Whitney’s letter as an isolated piece of correspondence. It must be remembered that this was written in response to Weiland’s letter which stated, “Weiland will fabricate mats as required by you, using your special hydraulic clinching unit and your Rockford Press, also your dies ... to turn out the mats in required quantities.” (All emphasis above mine.) I can only conclude that the letters support the proposition that Whitney was to furnish equipment capable of producing the product.
After the exchange of letters, Weiland put Bedner on his payroll and work commenced on the Hexarmour program. The machinery was moved to Weiland’s plant and assembly was begun about July 24th. Some difficulties were immediately discovered and were called to Whitney’s attention in a letter of July 27th. Another progress report was sent July 29th along with an inquiry about orders. As further progress was made, more deficiencies in the equipment were discovered and on August 11th Weiland informed Whitney that strips would not come out in uniform lengths because the condition of the dies was such that the height of the hexagons varied, thereby preventing production of uniform 36 inch mats. Weiland reminded Whitney that the contract called for Wei-land’s manufacturing Hexarmour, but that Whitney had the responsibility of completing and correcting the machinery. On. August 16th Weiland gave Whitney a written report describing some twenty-six errors, omissions arid incompletions then known to him even though the clinching table had not been tried under power. Weiland listed the cost of repairs at $5,144.44. Weiland testified Whitney told him to fix the machinery and he, Whitney, would pay the cost. Another invoice of charges was sent August 24th and on August 28th Weiland showed Whitney that the action of the clinching machine was so jerky and irregular that he was afraid the machine would be ripped to pieces. On September 1st Whitney wrote Weiland agreeing to pay the assigned portion of the work on the clinching table, mentioning that, “these bills hit me at a hard time,” and that changes, additions and improvements on the machines would belong to his company. On September 13th Weiland wrote Whitney advising him that expenses not covered in the August 24th invoice were an additional $4,800.
Weiland said he then visited the Klemp Company and discovered there was a difference in the Hexarmour and Hexsteel dies, the difference being in the way the cut off bar was made. On September 23rd Weiland wrote Whitney about the different methods of joining Hexarmour mats and pointed out the problem of die changes and additional costs. He suggested placing mats on the floor and assembling them for Whitney’s inspection. On September 25th Weiland delivered samples to Whitney which Whitney approved and ordered into production. Between September 25th and October 3rd seventy-two mats were produced and although Weiland pressed Whitney for money and/or orders, he was unable to get either. Whitney told Weiland not to worry about orders as they would be forthcoming in large quantities. With regard to money Whitney told Weiland the government contracts he had had not come through as yet, but that Weiland should be patient and sit tight. Bedner testified that Whitney inspected the seventy-two mats and said they looked exactly the way they should look.
After October 6th work on the Hexarmour program came to a standstill and on October 8th Bedner was discharged. After a meeting on November 11th Wei-land was unable to communicate with Whitney until May of 1955 when he received a letter from Whitney followed by a visit to Weiland’s plant in July. In response to Weiland’s question as to where he had been Whitney informed him that he had taken a job with a trade association and had been travelling a great deal. He again stated no orders had been acquired, but that he would get sales in great quantities soon. However, Whitney was able to produce only one order, that of October 20,1956.
Weiland stated he had his plant in readiness for production from July of 1954 to January of 1955 and that the Hexarmour program occupied about 40% of his plant space. On July 22nd Whitney wrote Weiland informing him that he would pay Weiland $5,062.65 if Weiland would release the equipment, which offer Weiland refused. After further futile negotiations, this suit was instituted on October 18,1956.
Whitney’s letter of July 9th was not a complete rejection of Weiland’s offer of July 2nd nor can it he construed, by any stretch of the imagination, as a complete understanding of the parties agreement. However, even if the July 9th letter is to be considered by itself, we must bear in mind that it was prepared by Whitney and any ambiguities in written instruments should always be construed most strongly against the author. Crerar Clinch Coal Co. v. Board of Education of Chicago, 13 Ill App2d 208, 141 NE2d 393; 12 ILP, Contracts, § 221. This is especially true in this instance since Whitney is an attorney.
In the July 9th letter Whitney wrote that Weiland was to make any “adjustments.” Weiland, a tool and die man, testified that this term is understood by the trade to mean minor adjustments, not major alterations, improvements or furnishing of new parts. In construing the meaning of the terms of a written instrument, the court will, “interpret the instrument in view of the circumstances surrounding it at the time it was made, considering the objects and purposes the parties had in mind, so that the court may understand the language used in the sense intended by the parties using it.” Furst v. Board of Education, 20 Ill App2d 205, 217, 155 NE2d 654. The July 9th letter can only be understood by considering the July 2nd letter and the other surrounding circumstances. This the Master did. I agree with the majority that it is not the province of the court to renegotiate the parties’ contract. However, by holding Weiland responsible for undertakings he did not consent to, that is, in effect, what the majority does. To hold that the language of the July 9th letter makes Weiland responsible for all adjustments, alterations and improvements necessary to put the equipment in condition to manufacture Hexarmour would make the contract impossible of profit for Weiland. As the court said in Ouska v. Pearson, 291 Ill App 6, 10, 9 NE2d 69:
Considering the document, then, as a whole, and not as expressing an agreement in any single provision or word, we hold that the contract, literally construed, would he unusual, inequitable, and such as reasonable men would not likely enter into . . . The document cries for an explanation.
When, in his letter, Whitney states, “I cannot guaranty ... I am not a tool and die man ...” We must remember that Whitney was something more than just a layman in this field. He was the man who explained all the intricate details of the Hexarmour program to Weiland, using catalogs, samples and blue prints. The letter itself contains language illustrating that Whitney was familiar with tool and die work for he cautioned Weiland, “[a]ny die that is run continuously with automatic feed, is subject to adjustments from time to time.” It is only when, the July 9th letter is read in light of the surrounding circumstances that the real meaning of the language used can be determined.
The majority place great weight on the portion of the letter stating that Hexarmour must be made “in accordance with the sample.” The majority accept Whitney’s contention that Weiland’s mats, having end connections differing from those on Hexsteel,* did not meet the contract specifications. The exact language of the July 9th letter is:
The most important thing is that the die and the clinching table will be able to make the hexarmour in accordance with the sample. (Emphasis mine.)
The majority treat this language as placing an obligation on Weiland. Weiland contends, correctly I believe, that this language is actually a guarantee on Whitney’s part that Whitney’s machinery and equipment would produce the desired product.
In MacAndrews & Forbes Co. v. Mechanical Mfg. Co., 367 Ill 288,11 NE2d 382, the Supreme Court pointed out that no particular words are needed to create an express warranty, but that whether an express warranty exists is to be shown from the intent of the parties. The court stated that:
The intention of the parties is to be determined from the language employed, when read in the light of the context of the instrument and such surrounding circumstances as will aid the court in arriving at the true meaning of the parties. 367 111 at 297.
In MacAndrews, the plaintiff contracted with defendant for the purchase of a spray drying machine to use in the manufacture of licorice and brought suit for breach of warranty. Plaintiff had written defendant requesting information about the machine defendant would be able to furnish. Included in this letter was a request for the “ [guaranteed evaporation in lbs. water per hour over a 24-hr. period.” Defendant’s reply offered to provide a machine designed for the evaporation of 100 gallons of liquid per hour, but made no mention of operation for a 24-hour period. Plaintiff accepted this offer. Subsequently, plaintiff brought suit contending the machine would not operate for a 24-hour period. In determining that there was a warranty for 24-hour operation, the court considered other written memoranda of the parties as well as the surrounding circumstances. This is what the Master did below in the instant case and I do not believe it to have been error to do so.
I believe the other language in the July 9th letter, the other letters, the surrounding circumstances and the actual language used, “will be able,” support Weiland’s contention that Whitney made a guaranty. The evidence below is substantial that Whitney’s machinery, as delivered to Weiland, would not produce mats with end connections any different than those produced by Weiland. Yet in his letter, Whitney states that the Hexarmour previously produced by his machinery, “looked fine to me.” Further, there is the testimony of Bedner that in October of 1954 Whitney gave his acceptance to the mats produced by Weiland. Even if the language quoted above is construed as placing a burden on Weiland, there is substantial evidence that Weiland produced a product that met “specifications.”
The majority also rely on the fact that Weiland was told to, and did, make inspections. However, this inspection was to be made of machinery strewn about another plant. Whitney knew this. That the machinery was incapable of making Hexarmour with end connections similar to Hexsteel was not ascertainable by Weiland through any visible examination. The majority assert, however, that although Whitney’s letter of July 9th does not contain an “as is” clause, the “sense” of the letter makes this an “as is” contract. If Whitney, a lawyer, desired to draft an “as is” contract, he surely was capable of clearly stating it. As I stated previously, any ambiguities in the July 9th letter should be resolved in favor of Weiland. To construe the letter so that an “as is” clause is added is to give Whitney every favorable intendment from language he alone chose to use.
The majority recognize that even though the contract did not specify a minimum amount of orders, Whitney was still obliged to use his best efforts to secure orders. However, even though Whitney did not secure a single order until October of 1956, even though he took another full time job with a trade association, and even though, during the early months of the contract, when major difficulties arose, he kept himself secluded from Weiland, the majority state that, in general, Whitney kept himself in a position to perform his part of the contract. The majority state that it would have been absurd under the circumstances for Whitney to have produced a large volume of orders. The facts are that Whitney produced no volume at all. If Weiland had an obligation to produce samples and made a breach by failing to do so, this was an inconsequential breach for there was no showing below that any orders were lost because samples were not available. Whether Whitney used reasonable efforts in performing his part of the contract is, I believe, a question of fact, and there is substantial evidence to support the finding below that Whitney did breach this part of the contract. Sampson v. Marra, 343 Ill App 245, 98 NE2d 523.
In conclusion, I believe Whitney’s letter of July 9th is not the. formal agreement of the parties. The Master did not err in considering Weiland’s letter of July 2nd along with the other letters nor did he err in admitting parol evidence to explain the written language. The record is clear, I believe, that Whitney’s equipment could not produce Hexarmour as warranted by Whitney. The Master and Chancellor awarded plaintiff damages solely on a quantum, meruit basis. In my opinion, this was a fair and equitable award and I believe the Decree in question should be affirmed in all particulars.
The ends of Hexsteel are closed hexagons with a protruding tongue. Strips are connected one to another by joining the tongues with a special tool. The Hexarmour mats produced by Weiland, which the majority describe as having “ragged ends,” has open hexagon endings. That is, one end has four sides of an incomplete hexagon, the other, the other two sides. When joined, there would be a continuous strip of hexagons. The parties conflict over whether or not the Hexarmour mats produced by Weiland would be interchangeable with Hexsteel.