Clark v. Clifford

25 Wis. 597 | Wis. | 1870

Cole, J.

It is insisted by the counsel for the defendant that the contract sued upon is entire, and that the plaintiff had no cause of action until he had sawed the whole 800,000 feet, nr shown a legal excuse for nonperformance. The contract, it is said, created no separable parts or portions, upon which the consideration for sawing the lumber can be apportioned. This construction of the contract we consider unsound. According to the contract, the plaintiff agreed to saw 800,000 feet of lumber for the defendant as soon as it could be done with ordinary diligence after the logs were delivered to him at his mills by the defendant, for the sum of $2.50 per thousand, for which the defendant agreed to payas follows: “One'and seventy-five one-hundredths dollars per thousand feet to be paid before the lumber leaves the eddy below the mill, and the balance to be paid as soon as the lumber is sold in market.” In view of this clause there would not seem to be any ground for holding that the plaintiff was to receive nothing for manufacturing the lumber until he had sawed the whole 800,000 feet. It is not reasonable to conclude that the parties expected the entire quantity of lumber would be delivered at one time, and “leave the eddy” together. Such a construction of the contract would be unreasonable, and would do violence to the language employed. The plaintiff has delivered 100,000 feet, and the defendant has accepted it. That quantity has “left the eddy below the mill,” and the defendant is clearly bound to pay at the rate of $1.75 per thousand feet therefor. This is the plain meaning of the contract, and effect should be given to it accordingly.

By the Court. —The judgment of the circuit court is affirmed.