NO. 4-03-0345

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

BERRYMAN TRANSFER AND STORAGE COM

PANY, INC.,

	Plaintiff-Appellant,

	v.

NEW PRIME, Inc., d/b/a/ PRIME, INC.,

	Defendant-Appellee.	)

)

)

)

)

)

)

)	Appeal from

Circuit Court of

Sangamon County

No. 96CH205

Honorable

Robert J. Eggers,

Judge Presiding.

_________________________________________________________________

	JUSTICE STEIGMANN delivered the opinion of the court:

	In September 1996, plaintiff, Berryman Transfer and

Storage Company, Inc. (Berryman), sued defendant, New Prime,

Inc., d/b/a Prime, Inc. (Prime), seeking to enforce an August

1995 contract between the parties.  In June 2001, Berryman filed

its second-amended complaint.

	In October 2002, following a bench trial, the trial

court entered judgment in Prime's favor. 

	Berryman appeals, arguing that the trial court erred by

finding that paragraph eight of the parties' contract was ambigu

ous and entering judgment in Prime's favor.  We reverse and

remand for the trial court to enter judgment in Berryman's favor

and assess damages.

	I. BACKGROUND

	Because the parties are familiar with the evidence

presented at the September 30 through October 1, 2002, bench

trial, we review it only to the extent necessary to put the

parties' arguments in context. 

	Berryman and Prime were both companies in the business

of transporting goods via truck and brokering the transportation

of goods.  When Berryman acted as a broker, a customer (the

shipper) paid Berryman to transport its goods.  Berryman, in

turn, found a contract carrier to transport those goods. 

Berryman made money when it found a contract carrier to transport

the goods for an amount less than it had been paid by its

customer.  Berryman commonly referred to its customers as its

"accounts."

	In 1995, one of Berryman's accounts was Nichols

Aluminum, Inc. (Nichols), located in Lincolnshire, Illinois.  In

August 1995, Berryman entered into a contract with Prime,

pursuant to which Prime agreed to work as a contract carrier for

Berryman.  Paragraph eight of the parties' contract provided as

follows:

		"Carrier understands and agrees that

[b]roker has put forth substantial effort and

investment in order to develop its accounts

and it will at no time during the term of

this [a]greement, and for a period of one (1)

year after the effective date of termination

of this [a]greement, either directly or

indirectly, attempt to solicit, divert, by-

pass, back-solicit[,] or perform any services

for compensation for any account of [b]roker

which [b]roker has secured and has previously tendered to [c]arrier for transportation,

unless [b]roker has given prior written

authorization.  In the event that [c]arrier

violates the terms of this section, [c]arrier

shall be liable to [b]roker for the normal

and customary commission which [b]roker would

have received for each individual movement,

and [c]arrier shall deliver said amount to

[b]roker within thirty (30) days after

billing of the shipper."

Pursuant to the contract, Berryman tendered to Prime four

shipments of Nichols's goods, from Nichols's Lincolnshire

facility to a California destination.  In early February 1996,

Berryman agents were at Nichols's Lincolnshire facility when they

noticed that Prime was independently shipping for Nichols. 

Berryman then pursued its right to commissions under paragraph

eight of its contract with Prime, resulting in this lawsuit. 

	At the bench trial, Michelle Wagner, Nichols's

materials manager, testified that Berryman had been a carrier for

Nichols since around 1990.  In 1995, Berryman was handling about

25% to 30% of Nichols's shipping from the Lincolnshire facility.  

	Wagner further testified that Nichols first hired Prime

as one of its carriers in January 1996.  She acknowledged that

prior to that time, Nichols had paid Prime for shipping jobs as a

"third[-]party payer."  Wagner explained that some of Nichols's

product was shipped to a Kentucky company, Worldsource, to be painted.  Worldsource was then responsible for arranging the

shipping of the painted product to Nichols's customers, even

though Nichols covered the cost of that shipping.  Worldsource

had hired Prime to do some of its shipping of Nichols's product. 

As a result, between October 1994 and July 1995, Nichols paid

Prime a total of $53,221.34 for shipping its goods from

Worldsource to Nichols's customers.

	Prime argued at trial that paragraph eight of the

contract did not require Prime to pay Berryman a commission for

shipping jobs Prime did for Nichols because Nichols was a pre-

existing account of Prime.

	At the conclusion of the trial, the trial court ruled

in Prime's favor, upon finding that Nichols was an account of

Prime when Prime moved Nichols's product from Worldsource to

Nichols's customers prior to Berryman and Prime entering into the

August 1995 contract.  The court further stated, in pertinent

part, as follows:

	"[T]he evidence in this case suggests and

supports a finding by the [c]ourt that Prime

was doing business with [Nichols] for some

months prior to the time that the contract

binding the parties here was entered into. 

***  It seems to me that the document is

ambiguous, at least to the extent that issues

arise as to what happens if the carrier under

[p]aragraph [eight] has previously done business with the, what's the phrase that's

used in here, the account.  I would have

absolutely no problem awarding damages to

[Berryman] if [Prime] had not billed and done

business with [Nichols] prior to that--prior

to the date of the contract."

	This appeal followed.

	II. ANALYSIS

	Berryman argues that the trial court erred by

determining that paragraph eight of the contract was ambiguous. 

We agree.

	The determination of whether a contract is ambiguous is

a question of law; we thus review that determination de novo.  Shields Pork Plus, Inc. v. Swiss Valley Ag Service, 329 Ill. App. 3d 305, 311, 767 N.E.2d 945, 949 (2002).  A contract is ambiguous

when its language is "'susceptible to more than one meaning

[citation] or is obscure in meaning through indefiniteness of

expression.'"  Shields Pork Plus, 329 Ill. App. 3d at 310, 767 N.E.2d at 949, quoting Wald v. Chicago Shippers Ass'n, 175 Ill. App. 3d 607, 617, 529 N.E.2d 1138, 1145 (1988).  

	The trial court found paragraph eight to be ambiguous

because it did not address whether it applied when, as in this

case, the contract carrier had previously done business with the

broker's account.  We disagree with the court's determination

that the absence of an exception for preexisting business

relationships constitutes an ambiguity in the contract terms.  Pursuant to paragraph eight of the contract, Prime agreed not to

perform any service for compensation during the term of the

contract (and for a period of one year thereafter) for any

account that Berryman had tendered to Prime, without paying

Berryman the customary commission.  Paragraph eight provides one

exception--namely, when Berryman provides "prior written

authorization."  Paragraph eight does not provide an exception

for Berryman accounts for whom Prime had previously worked.  In

ruling as it did, the court, in essence, added that exception to

paragraph eight and thus provided Prime with a better bargain

than Prime had negotiated for itself.  	

	Illinois recognizes a strong presumption against

provisions that easily could have been included in a contract but

were not.  Miner v. Fashion Enterprises, Inc., 342 Ill. App. 3d 405, 417, 794 N.E.2d 902, 914 (2003).  Further, "the rights of

parties to a contract are limited by the terms expressed in the

contract and courts may not rewrite language or add provisions to

make the agreement more equitable."  Jewelers Mutual Insurance Co. v. Firstar Bank Illinois, 341 Ill. App. 3d 14, 26, 792 N.E.2d 1, 11 (2003) (McBride, P.J., specially concurring in part and

dissenting in part); Shields Pork Plus, 329 Ill. App. 3d at 312, 767 N.E.2d at 950 (recognizing that courts will not add terms to

a contract about which the contract is silent); Frederick v. Professional Truck Driver Training School, Inc., 328 Ill. App. 3d 472, 481, 765 N.E.2d 1143, 1152 (2002) (quoting Owens v. McDermott, Will & Emery, 316 Ill. App. 3d 340, 349, 736 N.E.2d 145, 154 (2000), for the "well-established" rule that "'where the

terms of a contract are clear and unambiguous, they must be

enforced as written, and no court can rewrite a contract to

provide a better bargain to suit one of the parties'").  Accordingly, we conclude that the trial court erred by

determining that the contract was ambiguous because it failed to

provide an exception for Prime's preexisting business

relationships and entering judgment in Prime's favor.

	III. CONCLUSION

	For the reasons stated, we reverse and remand for the

trial court to enter judgment in Berryman's favor and assess

damages. 

	Reversed and remanded.

	APPLETON, J., concurs.

	COOK, J., dissents.

	JUSTICE COOK, dissenting:

	I respectfully dissent and would affirm the decision of

the trial court.

	Berryman and Prime, trucking companies, entered into a

contract on August 14, 1995, under which Prime agreed to make

shipments, as requested by Berryman, which Berryman had

previously contracted to make for various shippers.  The contract

was a fill-in-the-blank standard-form contract regularly used by

Berryman.  The contract did not identify any shippers by name. 

The contract provided that Prime would not solicit "any account

of [Berryman] which [Berryman] has secured and has previously

tendered to [Prime] for transportation."  If Prime violated that

provision, Prime "shall be liable to [Berryman] for the normal

and customary commission which [Berryman] would have received." 

In August and September 1995, pursuant to the contract, Berryman

requested that Prime make some shipments for Nichols.  Then in

January 1996, Prime made some shipments for Nichols without any

involvement by Berryman. 

	The problem is that prior to the date of the contract,

Prime was already making shipments for Nichols.  Some of

Nichols's product was shipped to a Kentucky company, Worldsource,

where it was painted and shipped on to Nichols's customers. 

Worldsource hired Prime to do some of that shipping, but it was

Nichols's product that was being shipped, and it was Nichols that

paid Prime for the shipment.

	Michelle Wagner testified that she is the materials manager at Nichols.  According to Wagner, Nichols paid Prime

$53,221.34 for shipping services between October 1994 and July

1995 for the shipments from Worldsource in Hawesville, Kentucky. 

On October 3, 1994, Prime was given a supplier identification

number by Nichols.  On October 24, 1994, Kevin Hanks of Prime

contacted Nichols to solicit its business.  On November 21, 1994,

Nichols requested Prime's federal identification number.  In May

1995, Hanks sent rate proposals to Nichols, quoting rates from

Lincolnshire, from Hawesville, and from other locations.  In

January 1996, Nichols began direct use with Prime, due to an

increase in shipments to a customer in Helena, Arkansas.  Wagner,

who was unaware of the contract between Berryman and Prime, felt

that many of the loads Berryman complained of, which had been

given to Prime, would not have been given to Berryman:  "If Prime

wouldn't have been able to, I would have called other carriers,

not Berryman.  They were not an area that Berryman typically

covered for us, or we didn't have a good rate at that time." 

	The majority chooses to decide this case on the basis

of legal rules and to ignore the intent of the parties.  The

majority assumes that any work Prime does for Nichols during the

term of the contract (and for a period of one year thereafter)

requires Prime to pay Berryman a commission.  The only exception

is where Berryman "provides 'prior written authorization.'" Slip

op. at 6.  There is no "exception for Berryman accounts for whom

Prime had previously worked."   Slip op. at 6. "In ruling as it

did, the court, in essence, added that exception to paragraph eight and thus provided Prime with a better bargain than Prime

had negotiated for itself."  Slip op. at 6.  

	The modern approach to contract law is to attempt to

interpret contracts as the parties and business people would

interpret them.  Course of dealing, usage of trade, and course of

performance may be considered to explain or supplement the terms

of an agreement even without a determination that the agreement

is ambiguous.  810 ILCS Ann. 5/2-202, CUniform Commercial Coadedee

Comment (1)(a) (Smith-Hurd 20021993) (rejecting the premise that the

language used has the meaning attributable to it by legal rules

of construction rather than the meaning that arises out of the

commercial context in which it was used); see also Towne Realty, Inc. v. Shaffer, 331 Ill. App. 3d 531, 545, 773 N.E.2d 47, 58 (2002) (Cook, J., dissenting) (rule of construction against

drafter does not attempt to discern intent of parties but simply

decides who will win the case, like flipping a coin).  "In

interpreting a contract, it is axiomatic that the primary goal is

to give effect to the intent of the parties."  Putnam v. Village of Bensenville, 337 Ill. App. 3d 197, 209, 786 N.E.2d 203, 211 (2003); see also Shields Pork Plus, 329 Ill. App. 3d at 310, 767 N.E.2d at 949.  

	The courts have come to disfavor strict contract

interpretation and have recognized the impossibility of

ascertaining the intended meaning of an agreement without

reference to evidence of surrounding circumstances, even though

the agreement at issue was not "ambiguous."  First Bank & Trust Co. of Illinois v. Village of Orland Hills, 338 Ill. App. 3d 35, 47-48, 787 N.E.2d 300, 310-11 (2003); cf. Air Safety, Inc. v. Teachers Realty Corp., 185 Ill. 2d 457, 463-64, 706 N.E.2d 882, 885 (1999) (retaining "four-corners rule" for determining

ambiguity where contract contains an explicit integration

clause); see 810 ILCS 5/2-202(b) (West 2002) (consistent

additional terms not reduced to writing may not be proved if

writing intended as a complete and exclusive statement of the

terms of the agreement).  "'The meaning of words cannot be

ascertained in a vacuum.'"  URS Corp. v. Ash, 101 Ill. App. 3d 229, 234, 427 N.E.2d 1295, 1299 (1981), quoting Ortman v. Stanray Corp., 437 F.2d 231, 234-35 (7th Cir. 1971); Michael Nicholas, Inc. v. Royal Insurance Co. of America, 321 Ill. App. 3d 909, 915, 748 N.E.2d 786, 792 (2001) (insurance contract).  "An

insurance policy is not to be interpreted in a factual vacuum

***.  What at first blush might appear unambiguous in the

insurance contract might not be such in the particular factual

setting in which the contract was issued."  Glidden v. Farmers Automobile Insurance Ass'n, 57 Ill. 2d 330, 336, 312 N.E.2d 247, 250 (1974).  "'[N]o form of words, no matter how all

encompassing, will foreclose scrutiny of a release [citation] or

prevent a reviewing court from inquiring into surrounding

circumstances to ascertain whether it was failrrly made and 

accurately reflected the intention of the parties.'"  Carlile v. Snap-on Tools, 271 Ill. App. 3d 833, 839, 648 N.E.2d 317, 321 (1995), quoting Ainsworth Corp. v. Cenco, Inc., 107 Ill. App. 3d 435, 439, 437 N.E.2d 817, 821 (1982).    

	The majority recites the catchphrase that "Illinois

recognizes a strong presumption against provisions that easily

could have been included in a contract but were not."  Slip op.

at 6.  Under that principle, we could rule for either of the

parties in this case:  Prime could have included a provision that

no commission was due on shipments related to Prime's precontract

dealings with Nichols; Berryman could have included a provision

that a commission was due on such shipments.  Under the

majority's approach, every contract dispute should be dismissed

because the parties could have included language that would have

made the contract clear.  The cases that apply the phrase,

however, are not cases involving uncertain language, but cases

where the language is beyond dispute.  See Klemp v. Hergott Group, Inc., 267 Ill. App. 3d 574, 580, 641 N.E.2d 957, 962 (1994) (plain language of agreement clearly indicated defendants

were only required to pursue rezoning before the city council);

Cress v. Recreation Services, Inc., 341 Ill. App. 3d 149, 185, 795 N.E.2d 817, 850 (2003) (parties made no attempt to limit

measure of damages available on breach).

	Shields Pork Plus, cited by the majority in support of the presumption "'against provisions that easily could have been

included in the contract but were not,'" was actually critical of

the presumption and refused to apply it.  Shields Pork Plus, 329 Ill. App. 3d at 312, 767 N.E.2d at 950, quoting Klemp, 267 Ill. App. 3d at 581, 641 N.E.2d at 962 (parties did include term; fact that it was ill-defined did not mean parties intended contract to

be silent as to that term).  The presumption at best restates the

obvious:  if the contract says "orange," it should not be read to

say "blue."  If the parties wanted to say "blue," they could

easily have done so.       

	Modern authorities have considered the course of

dealing between the parties even absent a finding of ambiguity. 

See 810 ILCS 5/2-202, 1-205 (West 2002).  In the present case,

however, it is clear an ambiguity exists.  When the language used

is susceptible to more than one meaning or is obscure in meaning

through indefiniteness of expression, a contract is properly

considered ambiguous.  Wald v. Chicago Shippers Ass'n, 175 Ill. App. 3d 607, 617, 529 N.E.2d 1138, 1145 (1988).  Does the

language, "for any account of [Berryman] which [Berryman] has

secured," include accounts Berryman did not secure but which were Prime's preexisting accounts?  Does the language, "shall be

liable to [Berryman] for the normal and customary commission

which [Berryman] would have received," require payment for

commissions Berryman would not have received?  It is not at all clear that those questions should be answered in the affirmative. 

The contract is ambiguous.          

	While the question whether an ambiguity exists is one

of law, the question of the effect of that ambiguity is one of

fact.  We will not disturb a trial court's finding of fact unless

it is manifestly against the weight of the evidence, as that

court is in a superior position to determine credibility, weigh evidence, and determine the preponderance thereof.  Rybicki v. Anesthesia & Analgesia Associates, Ltd., 246 Ill. App. 3d 290, 301, 615 N.E.2d 1236, 1244 (1993).  The trial court found "that

Prime was doing business with this company [Nichols] for some

months prior to the time that the contract binding the parties

here was entered into."  The trial court found "that the document

is ambiguous, at least to the extent that issues arise as to what

happens if the carrier under [p]aragraph [eight] has previously

done business with the, what's the phrase that's used in here,

the account."  Based on Wagner's testimony that the product

shipped to Worldsource was always Nichols's product, from the

time that it went to Worldsource, while it was at Worldsource,

and after it left Worldsource until it reached the ultimate

consumer, the trial court found "that in fact this was an account

of Prime prior to the date of the contract."  The trial court's

decision was not contrary to the manifest weight of the evidence. 

	There is another way to look at this case.  Even if we

assume no ambiguity and refuse to look outside the contract,

Berryman is entitled to a commission only on accounts it "has

secured and previously tendered" to Prime.  Berryman is only

entitled to commissions which it "would have received" for a

particular movement.  The trial court was entitled to conclude

that Berryman did not secure and tender the Nichols business to

Prime, that Prime had already done business with Nichols, and

would have received the shipments complained of even without the

relationship with Berryman.  Berryman had to prove that the complained-of work was on an account it had secured and tendered

to Prime.  Berryman failed to do so.  The amazing thing about the

majority's holding is that if Prime had done nothing more than

continue to make Nichols's Worldsource shipments as it had been

doing since 1994, Prime would have owed Berryman a commission on

any shipments after the date of the contract, August 14, 1995. 

Those shipments were certainly not secured by Berryman, but the

majority would read that requirement out of the contract.  

	The argument could be made that, in determining Nichols

was not an account secured by Berryman and tendered to Prime, the

trial court rendered the contract meaningless.  That argument

would be incorrect.  The contract applied to any shipments

tendered by Berryman to Prime, not just the Nichols shipments. 

There may have been other shippers other than Nichols, where Berryman

in fact secured the account and tendered it to Prime.