150 Wis. 19 | Wis. | 1912
The appellant contends (1) that it shipped the terra cotta contracted for within the time required by the contract, and that in any event if there was a breach of the
The contract used was a printed form prepared by tbe plaintiff. At tbe end of tbe fourth article thereof tbe following addition was made in typewriting: “It is further agreed that manufacturer will make up and furnish to tbe architect all details for bis correction, etc., ás to measurements.”
Tbe following portion of article V was printed, except tbe word “eight,” which was in typewriting:
“Tbe first shipment of tbe material covered by tbis contract shall be begun within eight weeks from tbe date of receipt by tbe manufacturer of proper detail drawings and complete information from which to make tbe work, and tbe balance of tbe material shall be delivered as rapidly as tbe construction at tbe building shall require tbe same, provided complete drawings and information be received prior to-.”
Immediately thereafter tbe following was inserted in typewriting :
“Manufacturer agrees to ship the material required below tbe moulded course over first-story-windows within tbe time mentioned above or at least enough of it so that tbe middle store next to main entrance Eighth street front can be occupied by August first, 1909.”
The contract was executed on May 26, 1909. Tbe plans and specifications drawn by tbe architect bad been in tbe
There is some force in tbe claim of tbe appellant tbat, inasmuch as it was obliged to prepare details and submit them to tbe architect for approval, tbe eight-weeks period did not commence to run until such details were completed and sent to tbe architect and approved and returned by him. Tbe matter of settling upon the details and of receiving “coniplete information,” according to appellant’s contention, was not concluded until June 16 th.
If we were to adopt tbe construction of tbe contract most favorable to tbe appellant tbat it would possibly bear, it is apparent tbat there were two substantial breaches of it.
It is clear tbat tbe undertaking of tbe appellant to furnish enough terra cotta so tbat tbe middle store could be made ready for occupancy by August 1st was absolute, unless there was some unnecessary delay for which tbe respondent was responsible, and there was none. Tbis material should bave been shipped as early as July 13th, whereas tbe first shipment was not made until more than a month thereafter. Conceding tbat tbe eight-weeks period as to all of tbe material except tbat needed to complete tbe middle store began to run on June 16th instead of May 27th, tbe contract was breached as to tbis portion of tbe terra cotta also, because it provided tbat after tbe eight weeks bad elapsed tbe material was to be “delivered as
It is apparent, therefore, that if the contract he given a construction decidedly favorable to the appellant, it was breached in the two particulars mentioned, and these breaches would be sufficient to sustain the judgment if we knew that the same damages would result therefrom as were found to result from the breaches found by the referee and the circuit judge. The referee reached the conclusion that appellant was obliged to ship the terra cotta needed for the middle store as early as July 13th, and to commence shipping the balance by July 22d, that is, eight weeks from May 27th, and further found that the respondents sustained the following items of damage because of noncompliance with the contract so interpreted: Extra cost in the erection of inside walls, $120; extra cost in rebuilding scaffolds and shoring up joists, $117.50; expense of heating, due to delay in the work until cold weather set in, $98; material and labor furnished plaintiff in resetting columns, $44; making in all $379.50. It might well be that if the referee had concluded that appellant was not obliged to begin shipping the terra cotta, except that required for the middle building, until eight weeks from June 16th instead of eight weeks from May 27th, he would not have allowed as much damages as he did for extra fuel cost and possibly not so much on some other items. We therefore conclude that the judgment must be sustained, if it is sustained, on the theory that the referee and the court placed a proper interpretation on the contract. The difficulty in arriving at the intention of the parties is due to the fact that art. Y of the contract as printed was allowed to remain intact and uncompleted although it did not express the agreement arrived at, and be
The referee concluded that the parties intended that the eight-weeks period should commence to run from the day after the date of the contract, and that, taking art. Y as a whole,, there was no design to extend the period of delivery until eight weeks after the details had been completed and were approved and returned by the architect. In support of this construction, it appears that the printed portion of the contract requires the contractor, instead of the manufacturer’, to make- and furnish details. If this provision was permitted to remain intact, the reason for having the eight-weeks period begin to run after the details were furnished is obvious. The plaintiff could not know when the details would be furnished by someone else. But this part of the contract was modified by requiring the plaintiff to furnish the details, so the time-of their preparation was under its control and it knew just how long their preparation would take. In the next place it is somewhat significant that, after providing for the first shipment, the printed portion of the contract is incomplete as to-when the balance of the material shall be shipped. It repites that the same shall be shipped as rapidly as the construction of the building shall require, “provided complete drawings- and information be received prior to,” — no date being inserted. More significant still is the language used in the typewritten portion of art. Y. By it the manufacturer agreed to-
On the other points raised the findings of the referee are sustained by the evidence. We find no error in the record, and the judgment must therefore be affirmed.
By the Court. — Judgment affirmed.