Herbert S. Gilbert & Co. v. McGinnis

Citations

• 114 Ill. 28
• 28 N.E. 382

Syllabus

<p>1. Contract—right to rescind for refusal to comply with terms except upon new conditions. Where a purchaser of a lot of corn to be delivered to him at a future time, agrees, as a part of the contract of sale, to make such advances from time to time as the seller may require, if the purchaser refuses to make an advance when demanded, except upon condition that the vendor shall give his note for the amount, the seller may rescind the contract, and refuse to deliver the corn.</p> <p>2. Same—custom, usage—how far admissible to explain or vary terms of contract. Where a commercial contract is in any respect ambiguous, a particular custom or usage of trade known to the parties, or which, under the circumstances, they are presumed to know, or any previous course of dealing between them that will have a tendency to disclose the real intention of the parties, and to aid the court in arriving at the true construction of the contract, is admissible in evidence.</p> <p>3. Evidence of a particular custom or usage of trade is also admissible, for the purpose of engrafting, as it were, new terms into a contract, subject, however, to the qualification that such terms are not expressly or impliedly excluded by the express agreement. To have this effect the custom or usage must he reasonable, and not in conflict with any general rule of law.</p> <p>4. But it is not admissible to prove a custom or usage the effect of which will be to add to an express agreement a condition or limitation which is repugnant to or inconsistent with the agreement itself. Such evidence is never admitted -to vary or contradict, either expressly or by implication, the terms of an agreement, written or verbal.</p> <p>5. In February a person agreed to sell to another a quantity of corn at a stipulated price per bushel, to be delivered in the months of August and September following, and the purchaser, as a part of the same agreement, promised to make advances on the contract to the seller of what money he m