Albright v. Stegeman Motor Car Co.

168 Wis. 557 | Wis. | 1919

Owen, J.

Appellant contends that the judgment of the civil court should have been reversed because there never was a valid contract for the manufacture and sale of the truck, for the reason that the written order therefor was never countersigned by an officer of the company as required by its express terms. It is quite fundamental that parties may become bound by the terms of a contract even though they do not sign it, where their intention to' do- so is other'wise indicated.-- -Manifestly the provision requiring the- order' in-question to be countersigned by án officer of the company was inserted for the benefit of .the'company, and-‘to'-prevent its-liability- thereon until ratified .by- some one occupying a position of responsibility with the-company. -If-a contracting, party may be bound on a contract by. acts evidencing an-intent to that end, we see no reason why the provision here under consideration could not be waived, nor why the company could not by its acts accept the order, or become estopped to deny its binding force. If the company became bound upon the contract so that it could not resist its enforcement by appellant, it acquired the right to enforce it against appellant.

Conceding that the order was never countersigned by an officer of the company as required by its terms, the inquiry is whether the company otherwise became bound thereon. It is undisputed that shortly after the date of the order the company started work on the truck to be delivered in ful-filment thereof; that appellant wás cognizant of the fact; that he secured work in the factory in order that he might work on “his” truck and become familiar with its construction; that delay in its completion was the subject of frequent complaint and discussion, and that he even had the truck out on trial trips. If this is not sufficient to indicate an acceptance of the order by the company, the receipt and retention by it of $450 down payment is certainly sufficient to estop it from denying its acceptance of the order. Hoyt v. Schillo M. S. Co. 185 Ill. App. 628; McKeage v. Scully-Kostner C. Co. 185 Ill. App. 122; Edwards v. Gildemeister, 61 Kan. 141, 59 Pac. 259; Babbit v. Central L. Ins. Co. 93 Kan. 564, 144 Pac. 837.

Appellant relies upon Consolidated W. P. Co. v. Nash, 109 Wis. 490, 85 N. W. 485, in support of the contention that the contract never became effective. There the contract provided that it should not be binding upon any or either of the parties until signed by certain persons and corporations. Before it was so signed, and consequently before it' became operative as to any, one of the-signers withdrew. The court held that until-'the agreement; was signed by all'contemplated by its terms it was ah incomplete instrument; that no one who had- signed -it was irrevocably committed to his decision-to become'a party thereto ' and-Was at'-liberty to change his mind and withdraw therefrom. Hodge v. Smith, 130 Wis. 326, 110 N. W. 192, is much to the same effect. The situation presented in the water-power case is neither the same nor similar to the situation here. It was not suggested in that case that the parties failing to sign had become bound by the terms of the contract in any other manner than by signing. Had their conduct with reference to the contract indicated their intention to be bound by it, or been such as to estop them from denying their liability under it, it would have a more direct bearing upon the question considered here. But, for the reason stated, it furnishes no authority for appellant’s contention.

Appellant further contends that he is not liable for the value of the truck because time was of the essence of the contract; that the truck was to be delivered April 1st; that it was not completed or delivered on May 10th, on which date he rescinded the contract; and that, instead of being liable for the purchase price, he was entitled to recover back what he had paid thereon. Gra> ting that time was of the essence of the contract, this feature was waived by his notice of April 4th requiring delivery on April 25th; by his notice of April 11th 'requiring delivery April 30th; and by his agreement of May 7th that if the truck were delivered to him in lead paint on May 12th he would be- satisfied. Having agreed on May 7th that he would be satisfied with a delivery on May 12th, he could not rescind on May 10th. Phillips v. Carver, 99 Wis. 561 (75 N. W. 432), at p. 575.

The court found that the truck was completed May 12th. Under the terms of the contract $1,650 of the purchase price thereupon became due. While the court found that the $1,650 had been deposited with the company for safe-keeping and that the company had converted the same, it also found that $1,650 was due the company from the appellant to apply on the purchase price of the truck. Under such circumstances it was the duty of the court to offset the one against the other and end the controversy. Secs. 2610, 2836b, Stats. In rendering judgment dismissing the complaint effect was given to the legislative as well as judicial policy of this state that litigation should be ended and not protracted.

By the Court. — Judgment affirmed.