Excelsior Wrapper Co. v. Messinger, 116 Wis. 549

116 Wis. 549 | Wis. | 1903

Dodge, J.

There is but one controverted question of fact in this case, and" that is, "What meaning had the parties in using the expression contained in the contract of August 28, 1899, “what roll-rag paper (same as has been furnished during the last 12 months)” ? That the expression is ambiguous and requires explanation is, of course, obvious at a glance; hence extrinsic evidence was admissible to aid the court in its interpretation; such evidence being, however, confined within certain restrictions. Obviously, by the reference to the preceding year, it became admissible to show what had been done between the parties that year; and it appeared without dispute that there had been a contract between them for the furnishing of paper of this description, of specified weight and quality, to the amount necessary in plaintiff's business, at the price of $1.42^ per 100 pounds, to* be shipped by the defendant and received by the plaintiff as the latter might from time to time order during that year. Three constructions are suggested": First (that of the plaintiff), that all of these terms and specifications of the previous year’s contract were by these words embodied in the contract sued on. Defendant’s counsel suggests that the words “same as has been furnished” refer only to the weight and quality, while defendant himself, in correspondence, finally contended that they signified the same number of pounds as furnished the preceding year. The court below, as a deduction from all of the evidence, has adopted the plaintiff’s construction. The evidence, besides proof of what the previous contract had been, consisted of three or four letters from defendant and his agent to plaintiff, and from plaintiff to him, showing that the parties met upon a purpose of providing by contract for plaintiff’s needs of that class of paper for the .ensuing year, in contemplation of the probability that prices would be higher, and of the fact that defendant needed to have a binding contract with plaintiff before he could safely give his order to the paper mills; that both parties, with such contemplation, assented to a renewal for another year of the contract then existing between them. Such assent doubtless might have constituted a contract, of which the letters constituted complete evidence, had the parties not proceeded thereafter to reduce to more formal shape and to sign the writing of August 28 as evidence of the contract between them;'including therein a further element with reference to another hind of paper, as to which no definite agreement had been reached until this instrument was' executed. It further appeared that the character of plaintiff’s business had been known to the defendant for a number of years, and it had been customary for defendant and plaintiff to contract in advance for the plaintiff’s entire consumption of certain hinds of paper. As to this class of extrinsic or parol evidence of acts, conduct, or communications, preceding the execution of a formal contract, many decisions appear in our own Reports, and the lines of demarcation are reasonably certain. While it is not permissible to offer extrinsic evidence of the terms of the agreement, — of what one party or the other promised, — to vary, defeat, or add any term in a written contract, it is permissible, in case of ambiguity, to introduce evidence to ascertain the subject-matter with reference to which parties proceeded to negotiate and contract, and their situation and surrounding circumstances, so that the court may stand in substantially the same light in reading the words of the contract as did the parties when adopting those words. Nash v. Towns, 5 Wall. 689; Minnesota L. Co. v. Whitehreast C. Co. 160 Ill. 85, 43 N. E. 774; Sigerson v. Cushing, 14 Wis. 527; Nilson v. Morse, 52 Wis. 240, 9 N. W. 1; Walsh v. Myers, 92 Wis. 397, 66 N. W. 250; Brittingham & H. L. Co. v. Manson, 108 Wis. 221, 84 N. W. 183; Rib River L. Co. v. Ogilvie, 113 Wis. 482, 89 N. W. 483. These authorities refute the contention that in no case can be admissible any communications between the parties at or prior to the execution of the written contract. So far as snob communications, verbal or written, serve merely to establish the situation or surroundings, they differ not at all from other evidence of the same facts. So far, however, as-they relate to the terms of agreement between the parties,, they cannot be received. The writing must be taken as their final expression. 1 Greenl. Ev. §§ 286, 288; Steele v. Schricker, 55 Wis. 134, 143, 12 N. W. 396; Boden v. Maher, 105 Wis. 539, 81 N. W. 661.

Another class of evidence which was offered in much volume was the subsequent dealings and correspondence of the parties under this contact, whence it appeared that persistently, from some time in October onward, the plaintiff categorically and unequivocally declared its understanding that the contract entitled it to all the paper which its business demanded, and that, if that were not furnished, it had the right to charge defendant for any necessary extra cost in buying elsewhere. To the declaration of this claim, defendant offered no suggestion of denial or dissent until after there had been ordered and shipped some 38,000 pounds more than the entire consumption of tire previous year, nor until some time in February, when, upon the claim that he had already shipped more than the entire shipments of the previous year, and therefore more tiran the contract amount, he refused to fill orders except at a higher price. The efficacy of declarations and conduct of parties to give practical construction to ambiguous expressions in their contracts has been often recognized, and, in a doubtful ease, may well turn the scale in one direction or the other. Hosmer v. McDonald, 80 Wis. 54, 61, 49 N. W. 112; Janesville Cotton Mills v. Ford, 82 Wis. 416, 430, 52 N. W. 164; Walsh v. Myers, 92 Wis. 401, 66 N. W. 250. We think this evidence entirely sufficient to sustain the conclusion of the circuit court that the parties intended, by the ambiguous expression above quoted, to declare their agreement that the defendant should furnish, at the price specified, such roll-rag paper as the plaintiff should need in its business from September 1, 1899,. to September 1, 1900.

2. Rut appellant further contends that even, if this construction be given to the words of the contract, it still is not binding upon the defendant, for want of mutuality — First,, because, as he asserts, it contains no undertaking whatever on the plaintiff’s part; and, secondly, because, if bound, the-contract only requires the plaintiff to take such paper as it chooses, and it might, within its terms, refuse to take any.. The first of these grounds of asserted want of mutuality, we-think, is wholly contradicted by the very words of the writing, which closes with the expression, “to be taken as ordered,” followed by the signature of the plaintiff. This we-have no hesitation in construing to be an undertaking on the part of the plaintiff to take, at the price named, the-quantity specified. We therefore do not find it necessary to-discuss whether an obligation so to- do would be implied from the mere signature of a document declaring nothing but the-duty of the other party, in analogy to the implication which-has been held to arise from a mere “acceptance” of such an undertaking. Shadbolt & B. I. Co. v. Topliff, 85 Wis. 513, 55 N. W. 854; McCall Co. v. Icks, 107 Wis. 233, 236, 83 N. W. 300. The latter contention presents a question fruitful of many decisions by courts; tire earlier of them tending generally to the view that, where the agreement of one party was to furnish only that which the other party should desire or order or need, there was entire freedom from obligation on the part of the latter, and therefore no mutuality. The-principle of these cases has been very lately declared in this-court, in Hoffman v. Maffioli, 104 Wis. 630, 80 N. W. 1032; Teipel v. Meyer, 106 Wis. 41, 81 N. W. 982. In later times-courts have fully recognized, however, 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 to tbe contract mutuality. Thus, an- agreement to carry all coal wbicb tbe other party might desire to have carried in a given period, while wholly uncertain if the other party has no coal and is engaged in no business or enterprise to regulate his desire to ship, is reasonably certain in the case of a mine owner, the product of whose mines will regulate the quantity which he will need, and therefore be likely to desire, to ship, if the construction be adopted that his option is to be controlled by the course of such business. The underlying principle of this distinction was expressed in McCall Co. v. Icks, 107 Wis. 233, 83 N. W. 300, where the defendant agreed to buy a specified number of all dress patterns which the plaintiff -should issue. It being made to appear that the plaintiff was in the business of manufacturing and issuing patterns of various descriptions as the market needs required, it was held that the conduct of the plaintiff’s business, although prospective, would give a sufficient measure of certainty as to the number agreed to be purchased to make the contract valid and binding upon both parties. Other illustrative cases are Wells v. Alexandre, 130 N. Y. 642, 29 N. E. 142; Minnesota Lumber Co. v. Whitebreast Coal Co. 160 Ill. 85, 43 N. E. 774; Parker v. Pettil, 43 N. J. Law, 512; Cold Blast Transp. Co. v. Kansas City Bolt & Nut Co. 114 Fed. 77; Hickey v. O’Brien, 123 Mich. 611, 82 N. W. 241; Boden v. Maher, 105 Wis. 539, 81 N. W. 661; McCall Co. v. Icks, supra. The situation presented in the instant case falls •clearly within the principle of the later decisions. The plaintiff had an established business, of character and magnitude Well known to the defendant. It could not, with profit to itself, seriously modify the volume of that business for the mere purpose of increasing or diminishing the amount- of any given class of supplies. The exact quantity of paper, therefore, which it would want or need in that business during a prospective year, while uncertain at the time of the making of the contract, was sure to become reasonably certain in the course of the year; and the contract was not merely an optional one with the plaintiff, but bound it as-Avell to take, as it did the defendant to furnish, such paper,, of the quality designated, as should be needed for that business. This, under the authorities above cited, constitutes sufficient mutuality to give full validity to the contract, and make either party liable to the other for its breach.

The foregoing disposes of all the grounds of error assigned by appellant. The competent evidence, even if some-of doubtful competency was admitted, fully supported the-construction given by the trial court to the ambiguous words used in the written contract, which upon that construction-became certain and mutual. The breach of the contract as so construed, and the damage thereby caused to plaintiff, are-not controverted. The judgment was right.

By the Court. — Judgment affirmed. ■