Burstein v. Phillips

154 Wis. 591 | Wis. | 1913

Winslow, O. J.

We have, little difficulty in holding that there ^is no substantial uncertainty in the contract as to the price of the goods sold. Eememhering that the various kinds of goods are all different grades of paper rags, and noting that the price of the last grade is specifically named as “60c. per cwt.,” it seems not difficult to reach the conclusion that the previous prices named are also by the hundred weight. If this were doubtful, however, the testimony, removes all doubt when it shows without dispute that such goods are always sold by the pound and the prices fixed either by the ton or by the hundred pounds. To a person- accustomed to dealings of this nature it would be entirely clear that the prices all meant so many cents per hundred weight. When a contract is clear to the contracting parties and those who. have to do with such transactions generally, it cannot be condemned for uncertainty because the uninitiated may not understand the terms used._ Parol evidence in such case does not add to or vary the contract, but simply translates it from the language of the trade to the language of people generally. Maurin v. Lyon, 69 Minn. 257, 72 N. W. 72; New England D. M. & W. Co. v. Standard W. Co. 165 Mass. 328, 43 N. E. 112; 2 Page, Contracts, § 1110.

As to tlie supposed uncertainty in the amounts of the various kinds of rags sold, the question is quite different. It seems entirely clear that but two carloads were contracted to be delivered, one to be made up of three classes of rags and the other of two classes. Any other construction would necessitate either the elimination from, or the addition to, the contract of substantial words and clauses. It is equally certain that the contract does not specify how many pounds of any of the different kinds of rags are to go into either car. In this situation, is the contract to he held void for uncertainty? We think not. Contracts deliberately made and not unreasonable in their terms ought, if possible, to be enforced by the courts rather than set aside.

It is very evident from the parol testimony that at the time of the m airing of the contract it was not known how much of each of the various kinds of rags the defendants would be prepared to ship under the contract. The exact amount of each kind to be shipped was therefore not definitely fixed. It seems to us entirely reasonable to construe the contract as one giving the seller the right to fix the amount of each kind of rags to be shipped, providing of course that the full amount of two' carloads in .gross were shipped and that a substantial and not merely a nominal amount of each of the kinds of rags specified in the contract were included. Metz v. Albrecht, 52 Ill. 491. Had the defendants shipped two cars so loaded, the plaintiff would in our judgment have been bound under his contract to receive and pay for them, and if this be true it follows that the plaintiff is entitled to recover damages for the defendants’ failure to make the shipment.

A difficulty arises as to the amount of damages recoverable • under this construction of the contract, because it cannot be said with certainty what quantity of each kind of rags should have been delivered, and bence it cannot be said just what plaintiff’s loss was, inasmuch as the testimony shows a different rate of loss upon each kind of rags. This should not, however, deprive the plaintiff of all remedy. He is certainly entitled to the least sum which under the evidence he could have lost, i. e. the amount which he is shown to have lost by the failure to deliver two carloads of those kinds of rags respectively upon which the evidence shows there was the least loss. The evidence shows that of the material which was to be shipped in the first car the least loss was on “mixed papers,” i. e. $3 per ton, and in the second car upon “blues,” upon which the loss was $7 per ton. The circuit judge found, notwithstanding the jury’s verdict, that twelve tons constituted a carload, hence the aggregate loss on the two cars would be $120, for which sum the plaintiff is entitled to judgment.

By the Court. — Judgment reversed, and action remanded with directions to render judgment for the plaintiff as indicated in the opinion.