STAVER CARRIAGE CO. v. PARK STEEL CO., 104 F. 200

■SEAMAN, District Judge, after making tbe foregoing statement, delivered the opinion of the court. The briefs and arguments have been addressed to the single question of pleading, — whether breach of the contract in suit is well averred in the declaration.

The covenant is for sale and delivery of “all the tire steel of good and suitable quality which will be used in buyer’s works prior to September 1, 1899, not to> exceed 14,000 sets, nor to be less than 10,000 sets,” to be specified by the buyer “for carload shipments, and in reasonable time for seller to make required deliveries, but all not later than fifteen days before the expiration of this contract.” The contract thus stated is of the class upheld and well defined in National Furnace Co. v. Keystone Mfg.

Co., 110 Ill. 427, 434, as one by which the seller was to furnish, and the buyer was to take, the entire supply of tire steel to be used in the buyer’s works up to the date and within the amounts specified; “that is, such a quantity, in view of the situation and business [of the buyer], as was reasonably required and necessary in its manufacturing business.” See, also, Minnesota Lumber Co. v. Whitebreast Coal Co., 160 Ill. 85, 94, 43 N. E. 774, 31 L. R. A. 529.

However the minimum amount specified, of 10,000 sets, may govern, breach of the contract cannot be predicated alone on the failure to furnish the material beyond that amount, and up to 14,000 sets, because of the further limitation in its terms of the actual need of a supply for the use of the works prior to September 1, 1899. Whether the covenant is set out either in hsee verba or according to its legal effect, the rule is elementary that the breach must be assigned with certainty in the declaration.

It is generally sufficient, when the terms are clear, in assigning the breach to follow and negative the words of the covenant, but the terms must then be embraced to their full extent; and, when the general assignment of a breach in the words of the covenant does not necessarily imply that the covenant has been broken, the breach must be specially assigned. 4 Enc. Pl. & Prac. 939, 940; Marston v. Hobbs, 2 Mass. 433, 436; Karthaus v. Owings, 2 Gill & J. 430, 441.

And, when the obligation to perform the contract depends upon an event which does not otherwise appear from the declaration to have occurred, an averment of such event is essential to a statement of the cause of action. 1 Chit. Pl. (16th Am. Ed.) 329; Harrison v. Vreeland, 38 N. J. Law, 366, 369; Gwillim v. Daniell, 2 Cromp. M. & R. 61. Tested by these rules, it is manifest that a breach is not well assigned in this declaration. There is no averment of the fact that the tire steel as ordered was needed for the use of the works within the term specified by the contract.

The statement that it was “ordered from and specified to the defendant 'in accordance with the terms of said contract, * * * to be furnished by the defendant to the plaintiff to be used in its works at Auburn Park, Illinois, in accordance with the terms of said contract,” does not meet the requirement, as it avers only the making and terms of the order, and not that the fact or condition existed on which the tire steel was to be furnished under the contract; and in any view the statement is not limited, in the words of the contract, to ‘he used in buyer's works prior to September 1, 1890.” The declaration is manifestly framed upon the theory advanced by counsel in its support, — that the purchaser was entitled to the maximum amount mentioned in the contract, without regard to this qualifying clause, — a theory which we deem untenable, as above indicated.

The doctrine applicable in such case is well stated by Lord Abinger, in accord with our view, in Gwillim v. Daniell, 2 Cromp. M. & R. 61, approved in Brawley v. U. S., 96 U. S. 168, 172, 24 L. Ed. 622. The demurrer was special, jointing out this defect in the declaration, which was easily curable by amendment if the state of facts warranted such course. The ruling of the circuit court thereupon was correct, and the judgment is affirmed.