127 Wis. 382 | Wis. | 1906
The following opinion was filed January 9, 1906:
While the contention was made by the appellants that the freight-handling contract in question was merely simulated, or, if not simulated, that its legal effect was to make Promberger merely an employee of the plaintiff, and not an independent contractor, we regard these contentions as being so manifestly untenable that we are not required to discuss them at length, and will simply content ourselves with stating that they are overruled.
The leading questions in the case are whether the contract created the required mutuality of obligation — i. e. did it require the plaintiff to furnish Promberger any freight to handle — and whether it was sufiicently definite and certain so that damages can be recovered for its breach. An execu-tory contract in which the promises are all on one side is unilateral and not to be enforced. This is familiar law, and if. in the present case, by the true construction of the written agreement, Promberger promised to handle freight, but the plaintiff did not either expressly or by implication agree to furnish him any freight to handle, doubtless the agreement would be unilateral. So far as it remained execu-tory it would be an unaccepted offer. So also, if the amount of freight to be handled was neither fixed with reasonable certainty nor ascertainable, there would be no way of measuring the damages suffered with legal certainty, and no court would be required to attempt the task. These principles are quite elementary and do not require elucidation. The question is whether the contract is subject to either of these ob
Thus we see that the purpose of the contract was to secure the proper and speedy execution of an absolutely vital part of a very large and well established business, which, if delayed or inefficiently performed even for a day, necessarily involved great loss and damage. Bearing these conditions in mind, and proceeding to examine the words of the contract, we find that the first promise on the part of Promberger is that he will assume charge of and operate the plaintiff’s docks during the navigation season of 1899, and .will load and unload all cars or vessels and properly stow all freight, goods, or merchandise arriving at or forwarded from said docks or warehouses which the plaintiff may own or have charge of as common carrier in its business of transporting, warehousing, or handling merchandise at said docks or warehouses, under the direction of and as may best subserve the interests of the plaintiff, in consideration of the agreements -and covenants on the part of the plaintiff afterwards contained in the contract. After this general promise follow a number of subsidiary promises by Promberger as to the details of the work and the manner of its performance, a number of which provide that such details shall be performed “as directed by the plaintiff or its agentsalso a provision that Promberger shall give a bond to secure the performance of the contract, and then comes the plaintiff’s promise that in consideration of the faithful performance of Promberger’s aforesaid agreements it will pay him certain fixed rates per ton for freight handled by him which is transferred from cars to vessels or from vessels to cars, and other certain rates per ton for freight simply received and stowed, payments to be made twice a month; and will also furnish Promberger certain necessary conveniences, do necessary switching, furnish a boarding house at a nominal rental and grant to him certain other privileges, and finally that, in case Promberger carries out
Rejecting the provisions which relate merely to details, and stripping tbe contract down to its essence, it consists of a promise by Promberger to do all tbe freight handling at tbe plaintiff’s warehouses and docks incidental to plaintiff’s business at agreed rates, and a correlative promise by tbe plaintiff to pay those rates for tbe work at certain intervals. It is true that it is not said in so many words that tbe plaintiff agrees that it will furnish all its freight to Promberger to handle; but is not that promise a necessary implication? Suppose a merchant makes a written contract with an ex-pressman by which the expressman agrees to do all the cartage of merchandise and parcels incident to the merchant’s business for a year at certain specified rates, which rates the merchant agrees to pay; could it be claimed for a moment that the merchant could refuse to allow the expressman to carry any freight,- but could treat the contract as a mere offer and employ another to do the work or any part of it without breach of his contract ? Would this be an allowable construction of such a contract ? We cannot think so. Contracts must be reasonably construed. Conditions or agreements cannot be imported into them, but conditions or agreements necessarily implied are already there. If a man agrees with me to take care of my furnace for a year for a certain sum of money per month, and in consideration thereof I agree to pay him such sum per month, it certainly is not necessary, in order to bind myself, that a clause be added to the effect that I agree to allow him to take care of the furnace. Yet such would be the logical result of the appellants’ contention. The appellants rely on such cases as Wells v. M. & St. P. R. Co. 30 Wis. 605; Beers v. North Mil. T. S. Co. 93 Wis. 569, 61 N. W. 936; Teipel v. Meyer, 106 Wis. 41, 81 N. W. 982, and Hoffman v. Maffioli, 104 Wis. 630,
Some stress is laid by the appellants upon the fact that the
Having reached the conclusion that the contract is mutual in its obligations and not unilateral, we shall next consider the question whether it is reasonably definite and certain as to the work to be done. We think this question is very definitely answered in the affirmative by the principles laid down in the case of McCall Co. v. Icks, 107 Wis. 232, 83 N. W. 300, and Excelsior W. Co. v. Messinger, 116 Wis. 549, 93 N. W. 459. In the latter of these cases this principle is laid down in the opinion by Mr. Justice Douge :
“In later times courts have fully recognized that when the discretion, wants, or needs of a party are referred to an existing situation, such as an established business or a known enterprise, and intended to be controlled thereby, there becomes added a measure of certainty sufficient to give the contract mutuality.” See, also, W. G. Taylor Co. v. Bannerman, 120 Wis. 189, 97 N. W. 918.
While the volume of the business necessarily will vary from time to time, still, if the wants of an established business are to regulate the amount of the work to be done or the
Appellants further contend that there was a mutual settlement between the plaintiff and Promberger on August 16th, and a partial surrender of the contract, instead of an abandonment thereof by Promberger, as claimed by the plaintiff. This was a question of fact depending on the evidence, and the referee found against the appellants’ contention. It is undisputed that the whole trouble which culminated on August 16th resulted from a demand on the part of Promberger’s employees for an increase of pay of .twenty-five per cent. This demand was made and refused on August 13th, when a number of men quit, and others quit on the 14th, and by the 16th the work on the dock had ^come to a complete standstill, and the yards and docks became congested with un-handled freight, notwithstanding frequent demands made by the plaintiff on Promberger that he proceed with his contract. In this situation, on the afternoon of the 16th a .conference was held between some of the plaintiff’s officers and Promberger, at which Mr. Huger, one of the appellant sure
The contract provided for semi-monthly payments to Prom-berger, the moneys earned from the 1st to the 15th of the month to be paid on or about the 20th day of the month, and those earned during the remainder of the month to be paid on or about the 5th of the following month. It appears that on the 15th of August Promberger had earned during the preceding half of the month $5,519.42, and that plaintiff on that day paid him that stun, and on the 16th the further sum
Several minor contentions may be briefly disposed of. After the abandonment of the contract one Williams, an employee of the plaintiff, purchased a considerable number of claims for wages of the men who had worked for Promberger, to the amount of several thousand dollars, and took assignments thereof, and garnished moneys on deposit to Prom-berger’s credit in a bank and earned by him from certain steamship companies. The appellants claim that the plaintiff participated in this attempt or colluded with Williams therein. This claim was negatived by the referee on sufficient evidence and cannot be disturbed. The same answer must be made to the claim that plaintiff knew that Promberger had been guilty of embezzlement before the bond was given, as well as to the claim that the plaintiff paid the sums of
It is claimed that because the contract provided that Prom-berger’s bond should be conditioned to protect the plaintiff from loss by detention of freight by reason of strikes, and no such condition was inserted in the bond, nor any separate bond with that provision was given, therefore the plaintiff waived the giving of any bond or indemnity against loss by strikes, and that the loss here sued for and recovered is not covered by the bond sued on. It seems sufficient to say as to this claim that the judgment here does not include a dollar of damage for loss by detention of freight either by reason of strikes or from any other cause. The damages recovered are simply the increased expense of handling the freight above what it would have cost had Promberger carried out his contract. This being the case, the contention becomes immaterial.
. It appears that Mr. J. A. Murphy was local attorney for the plaintiff at the time of the employment of Promberger as
The question of damages remains to be considered. The referee assessed as damages against the sureties simply the
By the Court. — Judgment affirmed.
A motion for a rehearing was denied March 20, 1906.