Becker v. Holm

89 Wis. 86 | Wis. | 1894

PiNNBY, J.

1. We think that there was sufficient evidence to require tbe submission of tbe case to tbe jury, certainly as to tbe defendants Smith and Garrison. Whether there was sufficient evidence as against tbe defendant Holm it is not necessary now to consider, for tbe nonsuit was granted as to all tbe defendants and was erroneous if tbe case ought to have been submitted to tbe jury as to either of them. Gerhardt v. Swaty, 51 Wis. 24. Tbe points principally considered at tbe argument were: (1) Whether tbe agreement of sale was void for uncertainty; and it was insisted that there was no such language known in tbe law or in business transactions as “ bank-accepted note ” or “ bank-accepted paper,” and that therefore tbe minds of tbe parties bad not met, and that they bad not understood tbe same language in tbe same sense, and that there was no evidence as to what kind of notes tbe banks of Eau Claire would accept. (2) That tbe agreement was within tbe statute of frauds, for want of acceptance or receipt of tbe boat by tbe purchasers, or part payment of tbe purchase price.

2. As tbe agreement was a verbal one, tbe sense in which tbe words of contract were used, and what meaning, if any, tbe parties attached to tbe expressions referred to, or either of them, was a question of fact for tbe jury upon tbe evidence. A contract would not be inoperative or void because they used language not technically accurate or exact. It is enough if the parties understood the language used in ■a practical sense, and attached to it a definite meaning, although the court might not have been able to say what was intended by the expressions used. It would have been proper ■to have submitted this question to the jury, that they might ■determine in what sense or with what meaning the expressions, or either of them, 'were used. This is in accordance with Ganson v. Madigan, 15 Wis. 144, 153, and the rule there laid down has been acted upon in subsequent cases. Bedard v. Bonville, 57 Wis. 270; Lego v. Medley, 79 Wis. 220, and •cases cited. This is the rule applicable to written instruments the language of which is ambiguous or of uncertain meaning, and no reason is perceived for denying its application to verbal agreements. It is fair to presume from the assent of the parties that they assigned some practical and reasonably definite meaning to the words, and what meaning it should be left to the jury to determine in view of the entire transaction and surrounding circumstances throwing light upon the question. This view is sustained in Ward v. Lattimer, 2 Tex. 245, with respect to the words “ cash notes ” and the payment of a certain sum of money “in deal.” Reissner v. Oxley, 80 Ind. 580. The rule is said to be that the jury have the right to determine the existence of the parol contract and its extent and limitations." They are to find not only what language was used, but its purport and meaning. 1 Thomp. Trials, § 1108; Copeland v. Hall, 29 Me. 94; Herbert v. Ford, 33 Me. 90, 93; McKenzie v. Sykes, 47 Mich. 294. And it seems to be well settled that the question as to what the parties said and did in making the verbal contract, and what they understood thereby, is single, and cannot be separated so as to refer one part to the jury and another to the court, but in its entirety the question is one of fact. In the present case we think it may be properly said that the evidence tended to show that there was to be-given for the deferred payment of $1,000 paper of that amount that would be bankable or good at the banks of Ean Claire, so that the plaintiff might, if he wished, realize the money at sóme time before it matured.

3. There was sufficient evidence of acceptance and receipt of the steamboat by the purchasers to require that the case be submitted to the jury, and upon which the jury might have properly found that the sale was not within the statute of frauds. The boat was in the river, below the bridge,, and there is evidence that the defendant Garrison, assuming to act for his codefendants, arranged to take, and did have their employee, Smith, take, the boat up above the bridge, hard it out, and block it up in readiness for shipment on the-cars, for the agreed sum of $80, which was paid him by Holm, and engaged him to look after the boat and see that nothing was taken from it. The defendant Smith admits, that the sale was made to him, and to him only, Garrison acting as his agent. Although the vendor’s agent, Talbot, was to assist in managing the lines, and give directions as to the manner of moving the boat and taking it out, it was understood that he or his principal was not to be to any expense on account of it. On the 7th of December afterwards, Garrison and Holm expressed satisfaction with the boat and the manner in which Tiny Smith, hired for the purpose by Garrison, had done his work. The question of acceptance and receipt of the boat was for the jury. Smith v. Stoller, 26 Wis. 671; Amson v. Dreher, 35 Wis. 615. And there was proper evidence for the consideration of the jury on this subject. Amson v. Dreher, supra; Schmidt v. Thomas, 75 Wis. 531.

4. There is no objection to a-recovery on the ground that the sale of the boat was by an assignee, and in part upon ■credit. None but creditors could question the validity of the sale on that account. It follows from these views that the plaintiff was improperly nonsuited.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.