gilt .£f§l . ifiifttrs »il* ni aloofa'o .' , ^< .

lo rxolJoJtIlnl Axy Ivoa ttJbltfOiia 9iiJ T*»n at* JtaX %»A "to Bcti

*X»ti •££* i>n« xii-'v-i-iw-v V'-iis-':- '■>".■■-•• ■>'j »if«9iqait»iiC> »fL» uci..



orr x;r««!«X>[o<»y btm xX^^uoiol



•I ♦wo*



read traolct* whloi:; tow*r houa« on th« day of tho aooldent
«•• in charge of ono Jelm H, iihackloford, an empXoyoe of do-
fendanti, who workod from six o'elook p. m. to six o'clock
a. ffl.; that it waa ouitomary for him to have his supper de-
livered at the tower house at night « all of which was known
to and penoitted by defendants. She then avers that it was
the duty of defendants to provide at that place a safe and
suitable manner and aethod of getting to and frooi said tower
house for employees and persons having business therein, the
nonperforffiance of whioh duty constituted defendants* negli-
gence,

Turther* that on July 10* 1913, while she was
walking upon said tracks, for the purpose of delivering his
supper to Shackleford, and while proceeding with all due
care and caution for her safety, the Chesapeake & Ohio Rail-
way Company by its agents and servants carelessly, negli-
gently, wilfully, wantonly and recklessly ran and drove a
certain locomotive engine and train of freight ears thereto
attached into, upon, against and over plaintiff, etc.

The sseoad count is similar to the first, and l*
it it was alleged that it was customary for Shaokleford to
have his supper delivered to him at night, all of whiou was
known to and permitted by defendants, and that plaintiff was
walking upon the tracks by invitation. Thia count also al-
leges failure to have a headlight upon the locomotive or to
sound a gong, bell or ^listle to warn plaintiff.

The third count alleges it was defendants* duty
to uee ordinary and reasonable care to avoid injury to per-
sons rigrxtfully upon its tracks and right of way; that at
the time of the accident she was walkii^g upon tne right of
way in the exercise of due care and caution for her safety



:l{>aIs*o xi«2 c^ ,<a .q 3£oolo*o xl« «ATl b*?it ^9^n»bn9t

-•ib Tatj^oe «iif nvmsi oi aid tot TX^^'^^ai/a 9»- .»

RU& Xlft diivi y^aifii99oei<i «X' >'i»iHO«

« »vo%b £><u» a»n x-La<B^Xi£o ".Xnoicawt .^liAiliXw ,^iXin98

9^'x«iii «-XAo ^^faXftil to als-i^ biiA 9ai^tm •TXJTottOooX AAi^J-xoo

acr i>f ol6X3£»«de tot x^^wt^^^Mfo »»v tl iAdi^ Msaf
t.«w j.9J:dw to 1X« ,*rf3l« #a «lil 4i b«T#TlX»b rt»qq««
e^w ttJt^tuii-^Iti iMdi brf« 4 8:tr»»f)r!dt*fc ■^ fc»^^lfl«»tj baa o- awoiui
-I" o..i> lauoa aia'T ,ttoii«*xvnt x^ •3lo«t* «rii rtoqu aaXafXwr
dvXloaoooX »ff* nwiti tttfiiitP'" ^ tjuXIaI i^i^sX

.ttiJ-alfi^jf tvmv e>i 9£*»ldv n(,y, a bnuoti

Xiub *9tn.0bn»t9ib fumt tl m^^gt^tla inooa Lutii 6.17

)i ^wtnl fciovn o; - Co «<*<>« r ^tnttibTO •ew ot

.'.i an vJ ;^'«w 1o *ri^J;*i A.a« &A9A<t^ ttJi in>4ii X^f-f^ttfii^Xi •no«

' ■!:£ >?. V Roqu 3Ki3(i«w ttjat* raiuiooji •!!* to smtdf ari*

Xd^tftttA xoii -jtot ftc»23««or ' ban »x«« ^uit to 98Xot»x» «rfjt aX x*''



for tht purpose of delivering to an employee of defendants
his supper; and that the defendant*, by their servants,
wilfully, reoklessly and negligently ran, drove, managed and
operated a certain locociotlve engine so that the same ran
over her, etc.

The fourth oount was sii&ilar to the second in
its averments, and in it it was alleged that the Chesapeake
it Ohio Railway company, by its agents, ran a looomotlve
engine and train of freight ears in • northerly direetion in
•I oareless, negligent, wanton, willful and reckless ouuiner
upon nnd against plaintiff, injuring her, etc.

To these several oounts defendants interposed
pleas of the general issue and a epeoial plea of non-
ownership and non-control.

The declaration proceeds upon the theory that

plaintiff was a licensee and went upon the railroad tracks

upon an implied invitation, and the charge in eaoh count is

that defendants wantonly, willfully, reoklessly, etc., ran

over and Injured her. As a lloensee the duty which defendait

owed plaintiff was siuply not to wantonly or willfully injurs

her and to use reasonable care to avoid injuring her after

discovering her to be in peril. This was the liaAt of

defendant's duty, Thompson v. C. C. C. &. St. L, Ry, Co .,

226 111, 542, In I. C. R. B. Co. v. glcher . 2C2 ibid, 556,

the rule regarding such duty is laid down in the following

language:

*A railroad company owes no dutv to a person
walking along its tracks without its invitation, either
expressed or implied, except to refrain from wantonly or
wilfully injuring him, and to uae reasonable oare to
avoid injury to him after he is diaocvered tc be in peril;
and it makes no difference in that respect whether he is a
trespasser, a mere licensee, or one who ia on the tracks
by mere sufferance, without cbjeotion of the conpony. One
who goes upon a railroad track by permiaaion, or where
permission may be implied from the circumatanoes, may be
regarded as having a license, but one ^o is there by mere



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.;}oe« tii;^ oJ aaXLalii saw Sauoo uituo'i ail?

9Tlioiuo£>oX » OAK ^9itt»:,: J (i^a^iqatoO ^^mrXlii^ oi

VsrrnMH «v ■ Ciiv ,no;tn.r.r. ^Sri' ,fB^f**-

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CI.' rjT

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»<f \;civ, ,«•.••■



■ufferance« is not a licensee and may be a treapaaser. In
either caae taere is no duty toward him except to refrain
from wantcnly or wilfully injuring him. ( Illinoia Central
Railroad Go . v. Godfrey , 71 111. 600; Lake ..nore <» iichi »
g an aoufiiern Ky. Co, t. Bodeaien , 139 Id. ^96l iTlTnoia
Central' Kai'^ ^°f^<? ^o« ▼• Kobl e , 142 id. 678; yabaah Hail road
Co. y, Jones, l^sTTa, leT; ICTlinois Central Railrbai Co. ▼','
F^Conner , 189 id. 559.) In IllinoTe Central Railfoad' To.
▼ « Godfrey , aupra , no distinction ims made l)etween a iTcenaes
and a trespasser, but the same rule was applied to both,
and it was said, *A mere naked license or perrslsaion to
enter or pasa ever an estate wl]l not create a duty or im-
pose an obligBtion on the part of the owner to provide
against the danger of accident.* One who has pertciasion
or license to travel along the trnoka takea it subject to
the use of the road without reference to nim. The licenss
imposes no obligation to take precautions for his safety
or to run trains in any respect different from what they
would be run if he was not there, he takes the prerniaes
as he finds them, with all the attendant dar.gers oonnfcted
with their use, obly subject to the lixaitation that the
company shall not inflict upon him wanton or intentional
in J ury . *

The result of our decision rests within the
rules of law announced in the foregoing quotations and ths
oases there cited.

The facts relating to the accident which are not
eontroverted are that plaintiff, a resident of l^arlowe, Okla-
homa, came to Chioago in June, 1913, and visited at the home
of John J<. Shaokleford, of whoso wife she was a cousin.
Shackleford lived at the time of the aooident in a house be-
longing to defendant, in ^i^oso employ he was as a "tower man."
This house was near the trnoks of defendant in the vicinity
of the Calumet drawlsridgo. 3hackleford*8 duties were per-
formed between tho hours of six o'clock p. m. and six a. m.
of a continuous working day. The tower house in and from
whieh ahackleford disoiiarged hia duties was situate Just
north of the Calumet rivor near defendant's tracks and right
of way. 1-laintiff and hsr cousin were in the habit of taking
to Shackleford at this tower house a luncheon which he ate
at mlAnight. They at times wont together and at other times
only one of them went. On the east of the right of way thero
was a road oallod Torrenoo avonuo and also a well beaton



> r! •■• « .T fc"> -r ' «i ^it -J i».fi h na ttAtti



rii (.eea



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-tsi IC



6»v no

'iflC* rIiWj lefc two ?,9t Oil!;.

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path on the old rlpht of tmy to tho west of the existing right
of vay as it exiated at the time ci the accident. 7hca« were
accessible tc all persons in reaching the tower house froia the
Gbfickleford house and its Tioinity. There were no eye 'fritnessea
to the accident. llaintlff*8 narration of the occurrence is
In the record uncontradicted and Is in suhstanoe that about
eight o'clock July lu« 1913. she left the Shackleford none to
•arry a luncheon to Shackleford at the tower house of defend-
ant; that she 2:'r<>ceeded froai the Shackleford house to a small
brick house to the north of it, then went up some steps v/hieh
led to the embankment of the railroad txaolc and thence down
the tr'iok on a little footpath; that she was going north walk-
ing on the left side of the southbound track; that the path
was on the eab&nkiBent just where the signals were, and on the
edge of the ballast; that the poth ^>as about a foot wide and
continued alongside the rails over to the signals, where it
■topped; that she got to the end of the path and saw a train
eoming on the southbound track near where she was walking;
that she crossed both tracks - bhe north and south tracks -
to keep away froui the passing train; that ahe was then east
of both tracks; that she walked very slowly and looked back,
because she was going to cross back on the other side; that
•he walked on the east side the distance that a person would
walk with rather a long train passing, walking rery slowly;
tiiat the train took two or three minutes to pass; that there
were about forty cars in that train; that Just ss it had about
passed, cill but the caboose and a car, she started back over
to the other side; that she again looked back south before
walking across, but Baw nothlnp but the pasolng train, nor
heard no signal; that she then started across the track; that
■he crossed the eaftt rail of the east track smd was in between






!5 J5a*3li>^tjrtc..



'I Da






!}«X

-aCXav/ ifJ-r-jr, -vJt'^-^ sc*f vd> ; rf^aq-t •: iri*

;TiO-t';ii' 'lis sT^ovf ■XA'ja Ttoflftct bttucdoiuaa orfJ- no s''lax>9

i9ti» oniLi b , -iLtni ^aX&9.iiqi 9iU oiotl X*«' SB^*^. <>«^

^4}ii:r ;<)hJt-» T»a^*o 9r(cr no iDsrf ssciq qJ^ ^nio^ «aw »£Ui 9ajuao»(f



th* two rails of tho oaat track and had naarly crossed the
traoJc when she was struck by the northboxund train; that this was
between 25 and 35 feat north of the signals; that she was struck
a little to the left side as she was going across when the
train struck her* severing her left am at the shoulder.

The train which struck plaintiff was proceeding
slowly - not uore than aix ulles am hour. The train which
she stepped aside to aTOid was going south; the train lidilch
struck her was going north. The southbound train was going
quite fast and aade auch noise, although that It made oiuoh
saoke Is in dispute. Be this as it may, there la no eTldenca
In this record warranting the conclusion that defendant's
servants In the running of the train viiiloh struck plaintiff
acted either willfully or wantonly. The tracks upon which
plaintiff was Injured were constantly traveled by trains pro-
eeeding north and south, there being nuch traffic passing Into
and out of Chicago. Several railroads operated their trains
over thesa tracks of defendant. Knowledge of these condi-
tions and of the rlak to pedestrians using defendant's right
of way was at least imputable to plaintiff, and froxc her
knowledge gained In walking along the right of way to and
frooi the tower house It is but reasonable to say that she
had actual notice of such conditions. Vhether plaintiff was
ae(j,ligent in not seeing the approacjaing train, by reason or
net of the sjoooke created by the southbound train, or in sud-
danly getting In Its path, is of no Ijuportance, because to
whichever of these causes the accident Is attributable, no
right of recovery can be predicated upon either, iftille It
is clear there were two safe ways In which plaintiff
could have reached the tower house on the day of the acci-
dent, and 1^1 oh prudence should have led plaintiff to have
taken instead of the perilous path which she trod, still



titjdt S&^$ ;ttiJt'i3 btLUodttatnn 9iii x<i Hturi'^* &«« tiila ao£f«r Ttanxt

tti&kehf niati 9£(T ,'IU9A n» t*fi -^ <»tOu: _- ';Xi

jdolii^r atB"s* 9^ ;riJtfC6i affio^ »*!/ _. ^ -. :>btii* tc,,;..: axle

S0id» B<nr ai»xi bua^iidiij9» ^cit .xi^ton salons saw 'x*£( ;^»irc^t

i^M^' a*fc.'.!i! fi 3iJit:t .'.v;.i.'ii<.> f >s ,991011 ririi'M. «»L,r:,;; ;,;-..« j ?■ nl ».tli;;j|

^-' j^^La'ii^ib Jct - ? uoieufottao .. ^- ,...,.-.,.-.■, . ,„

m.>itl«lq jLbirtii Aoiai> al»xi »A& "lo jjAJtrtrtfj;. ,.., .;i a*fli»vx«»i

Q^al ^itiuBe^ 9lJ^&%f dotm ;s)flrJtft(f 9t»ti^ ,AiuQe baK <'^49(|

J- . ;.v. i t II ♦ t£TjRMf>l«& ■ SrtiaM mimtti9«t -i ., .. ...■—•,_■

hti» «»J '/ .^l: :. . i-:;X« :an>->rr»» - ._ _;..... ^ .J^^ - :Ofl;i

«jnr llJUniAlq leaiT^i . loiiifettt:-', : .. . .:.u„jl„ i>Si£

TO noBJM^ \;d , flint:;; 3itlxlaed'ttt^ •i^^ ^ni»»a ita al icm^il^^in

• bL'Q ni I'd «ni««» l>7tu(>tid#iF0« 9£ll ^cf &6{rjt«To •stouw aiU le ion

tjj 3..;*i8asri ,»snj»^rr>'»qai CMS t<6 •! ,ri**!f s*l nl tinijiii v Xnift

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111 Jniti ffl rfoirn- nrt nv.jira. !*t8B OW^ *M—,uy «•■«« > t*^" r-^ »■ *

i. w- »:.iJ i^. -■ ....1^.-



aside from her negllgcno* in this regard, she being at the
aest a licensee upon the rl{^:ht of way of defendRnt, she
has no right of action against defendant, under well settled
legal principles, llaiatiff in walking along the ri(,;ht of
way of defendant assumed all attendant risks with the single
•xoeption of wanton or wilful injury at the hands of defend*
ant or its servants, or the laoJi. of rtascnable effort to
avoid injuring her after it beeaue evident she was in a
perilous situation.

Nor did plaintiff's presence as a licensee im-
pose upon defendant the duty of taking any precaution for
her safety or of running its trains in any respect differ-
ently than they would have been xnjui had she not been there*
irren the absence of a headlight, if one were essential, or
the failure to give a si^^al or ring ithe bell of the engine,
would not render defendant liable to a person who was on th«
:^soks by implied Invitation as a licensee. 'I'hoitipscn v,
C. C. C. & 3t. I . Ry. Co. . euxra .

The record lacking proof that plaintiff's in-
juries were occasioned by the wanton or willful act of de-
fendant or its servants, or that defenaant was negligent
in not using reasonable diligence to avoid injuring plsin-
tiff after discovering the perilous situation in wiiica uhe
had placed herself, plaintiff is not entitled to recover in
this action, and the Judgment of the Circuit Court is re-
versed with a finding of fact.

REVERST'D i^ITH JWVIHQ 0? ?ACT,



ii9iiiHt> ■ ^ .^ 'V . Ti^^f? iToi;fDA lo iff^lf Oil amsi

u-n-f.i j;rl ?>u-. <i'i! i;Wi iJS ' .; ■.;?'9rf bXtfOT'.- Yv>:l.> nH(\if Yf#f«t<*



oi 'xovooftt o^ k»iii*«» doa oJL tti*nx*»i\i «troeT9n . -w- ; ; b»d

-vj-r fvf +T.-. . tr. - rio iiit^ "io #««iB;$iut «rfl fcc^ ,noi*o« sjtn'i

.jro*l- 't- ■— - ^-5 ^. • ••; . f..... - .,r



*\Si,:- ■ln\ iMi t\'-fJilH:^T>L



409 - 23764 TTflTiTVa 0? TACT.

Th« oourt finds that the defendant was not
guilty of any act of negligence charged in tne declaration
of plaintiff or in any count thereof.



559 • 89904

\

TEED ALLI^ AUTUkOBILB )

dUPPLY COi* a corporation,
\ AppelXfie,



H, W. JOHNS-KANVILLE CO.,
a corporatlozii

Appellant y' )




AI'fEAL yROli UW.lCllAL COURT
OF CHICAGO.



11 I.A. 217



KR, mSIBIKQ J1/8TICX HOLDOlt
nSIIVEflED THS OyXTTlOJi 0? THE COURT.

This is an appeal from a Judgment for $1075.24
in favor of plaintiff onterad upon th« finding of the onurt.
Tht action is upon a written contract betwaan /



the parties is mtiioh



plaintiff agreed to purchase from de-
fendant within twelve laonths frca its date all plaintiff *8
requireaents of "Red Seal Batteries'* at prices and upon
tcn&s in tim contract specified. The contract contain^^Lhl
s igntf i aa nt > provision •> that plaintiff will "devote their
best efforts in promoting the sale of the same," meaning
the Hed Seal batteries in the contract described. The con-
tract provided for certain discounts frota scheduled prices
above certain quantities delivered and paid for within the
contract time for deliveries and ^yaent.

Vhile ouiny points are made for reversal and
ingeniously argued with ajnple citation of supporting au-
thority, we are of the opinion that the whole case rests in
our eenstruction of the contract as to what was aeant by
the provision that defendant would furnish sufficient of
the contract oojiuaodity to ffleet the requireiuents of plain-
tiff during the year the contract 'm.B in fores, llainftiff
contends and proved that its requireisent for the twelve
nonths period of the contract was 145 barrels more than de-



H



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i wm a/yi KAk



TIS .A.I I IS



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«a«l.i






,TTiT'5s IH7 fro ;rai:Ti£*> ?r}rr t

<i««vridd ioATdnQo iis^;^!!^ « aoqi/ 0i aoidoa eai
«''£ii«rnjLjiXq lln ttjtu^ mil non'i. Ojiiiaoa i9vX»w^ aiii^lw J^aaJ^nvl

t



flf>-



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••oiitq[ SfiuiD9ti9& cboYl c^crjuaoH^b nlB^^T






( j —

bruii iaaifty -nm. Blicti'

. ditt^i •««o 9Xo/iw 9(iJ simaJ aoitiX^« Aiii lo •tm tw «y.^^toxi/

led J'n.svn lav ^ji(j(Ar oi b« liMntinoo 9£[j lo flolioinriinoo tiro

lo ^neioillu« ^sinoirl hluam iniiba»'l9ii Suiii (TOleivoi<{ Btii

"iilaiH lo 6^fl»i»0'zXjJOo% •Hi ;ti»»in oi Y,iXl>«Ms;oo #OJiT4^noo rndt

WiinlAil .••-zol Hi «itw ioHiiatkO 9di yao^ ocU iaXt«jl 111^

otXovJ Off*? ^ol lfi«ai«iiliip9it fix i«£U Jb9V0-xq Jbnn vjri^iiioo

-9b aJuU 91100 «X:> I ««nv ;}ofi'XJa09 9xi^ lo boXliic udi



J



fendfuit deliTered and that demmnA therefcr was MAda; that
plaintiff needed for Ita r«V;uirefT>f>nt8 thaaa 143 barrels,
ahloh. In th« course of Ita business and \vn69r its contract,
it had scld to its oustoisera, and that the difference betwaaa
the contract prioa and the price at ahioh it had sold said
143 barrels of batteries, adding thereto the discounts which
it vould haTo been entitled to under the contract, .^as
11054.63, viih interest at five per cent, which mib the
basis of the trial court's finding and Judi^^ment.

Defendant did furnish plaintiff under the con-
tract 32 barrels of batteries and insisted tlmt these were
sufficient to meet all reasonable requirements of plain tiff. 1
Defendant admitted that it refused to sell or deliver more
than said 32 barrels to plaintiff.

There is no force in the contention that the I

contract is nudum yactuw and void for want of mutuality. No» j[

i
la the contract unilateral; it la bilateral and there exiata j

within it the reciprocal sbligBtion on the part of plaintiff
to buy and pay for tha batteries and upon the part of defend-
ant to furnish the batteries at the contract price within tha
tisie limited by the contract, inhere a contract is not ambigu-
ous, the intention of the parties cannot be determined by
OTldenoe aliund e, but by the language anployed in the contract
itself, Jollet v. Brewing Co., 264 ill. 215.

We af;ree with the argiDnent of defendant that the legal \yr
inquiry is, *lhat was the intention of the parties?** We think it
clearly apparent from the contract that defendant was to furnish
plaintiff with batteries as described in it to aeet all plaintiff
requirer>ents for twelre months, as those requirements might
materialize during that time with plaintiff devoting its best
efforts to promote the sale of the batteries. Wo find noth-
ing ambiguous in the language used in the contract in this re-



?






*liJ efl<iV liSi . . : :•;. tea'Xois... ,^t}*l'dOX|



di



'dT



'tort '■)©

.V £» -



gard; nothing calling for oral proof to define and make olear.

parsons on contracts, pag« b'd? , well etatee the principle thuai

"The decision auet always depend upon the ln> |
tentlon of the parties, to l>e collected in each partiou*
lar case from the agreement Itaelf and from the subject-
matter to whlcja It relates. It cannot defend on any formal;
arrangement of the words, but the reason and the sense 1
of the thing, as it is to be collected from the wJr^ole
contract." '

Applying this dicta to the contract in hand,
we would say in construing it that defendant was a aaanu-
facturer of the kind of batteries set out in the contract;
that it desired to sell as many of them as possible in one
year at certain prieat and under certain conditions, and
for that purpose made the contract with plaintiff in which
to carry out such purpose, and thereby bound plaintiff to
use its best efforts to promote the sale of the batteries.
There was no limit to the quantity plaintiff might sell.
It was to establish its requirements by procuring as many
orders for the batteries as it could by the use of its best
efforts; no reference to f>^»t sales in the preTious year
was made; no looking backward, but a going forward for one
year to sell all the batteries which it could in the exer-
cise of its best efforts. This plaintiff did, and in effect
defendant new complains that plaintiff was too active and used
too much effort in making sales* However, in the honest dis-
charge of ite duty under the contract, plaintiff ought not to
have done less. The contract, as the proof shows, being ad-
vantageous to plaintiff, undoubtedly stimulated its energy in
making sales. This was a condition it had a right to advantage
of. The complaint of defendant is the usual one with sellers
on a rising market. At this time the oontraet became a financial
disappeintmoat to defendant. It could sell its wares elsewhere
for monoy in excess of the contract price. Hence defendant's



-.-i 9sii floiiii AOBtiaJai e >usa flci«Xo«£» silt*

',.■':.. ' 7.; noxfiivS

-fib ^tdttC. ;{SMI Bi v-TC" ■

8**m>l;»rrdl9fi 9900H ••olY^; ^faat.^ ii99VM» at xf^n^.



default In p«rf oriaanct, with the eTident Intent of taking a
chance of eeeeping liability through legal technicality.
The inconsiatency of def cndant'e attitude io dieclosed by
its offer to prore that in th« preTlcue y«ar plaintiff »■
requirements did not exceed IG barrels* ^eri it actually
delivered 52 barrels under Uie contract without any hesita-
tion or oomplaint - a quantity, according to »uch contention,
three times and juore in excess of plaintiff's reasonable re-
quirements. After that the only change wnich occurred was an
increase in the value of the batteries under contract. The
Kinds of the parties must be deterruined froni the language of
the contract, and the requirements of plaintiff must be con-
strued to mean the reasonable requirements irtiich would re-
sult from the aotivities of plnlntiff in making sales which
both the letter and the ppirit of the contract required.
The proof related tc orders actually obtained, aa we gather
from the evidence. The reasons these orders were not filled
were twofold - first, defendant's failure to furnish the
batteries on request; and, second, the inability of plain-
tiff to procure thena in the aiarkct, A verbal order is shsn
proven just as binding as one in writing. It was not neces-
sary for plaintiff to prove the orders by the parties giving
them. Defendant if ne had doubted the veracity of this
proof might have called the persons giving the orders in
denial. ]tlalntiff*s evidenoe as to this was not hearsay. | ^^
The discounts allowed by the contract were properly proven
as elements of damage. '

Minnesota Lumber Co . v, i/hitebreast Coal Go . ,
160 111. 85, sustains plaintiff's contention that a contract