Fountain City Drill Co. v. Peterson

126 Wis. 512 | Wis. | 1906

Dodge, J.

One who performs an executory contract for sale of chattels by delivering the same at the place and in the manner specified in the contract is entitled to recover the stipulated price, certainly unless the contract had been unambiguously repudiated by the purchaser before such delivery. Ganson v. Madigan, 13 Wis. 67; Chapman v. Ingram, 30 Wis. 290; Boyington v. Sweeney, 77 Wis. 55, 69, 45 N. W. 938. In this case plaintiff’s contract was to “ship” the goods, and at the time specified it did ship them, addressed to defendants at Chetek. Thus the contract became fully performed by plaintiff, although defendants never took the goods from the railway station at Chetek. The conclusion of liability for the agreed price from such facts alone is direct and irresistible.

Defendants seek to avert that conclusion by reason of their repudiation of the contract before such delivery. Epr the purpose of the argument we may concede the right of a purchaser to repudiate the contract, and, by notification to the seller, to limit liability to the damages caused by the breach so committed. Merrick v. N. W. Nat. L. Ins. Co. 124 Wis. 221, 102 N. W. 593; Woodman v. Blue Grass L. Co. 125 Wis. 489, 103 N. W. 236, 104 N. W. 920. To accomplish that result, however, the notice of repudiation must be so authoritative and unambiguous as to wholly and beyond doubt absolve the seller from any duty to proceed to completion of the contract, and from any danger of liability if he refrains. Gibbons v. Bente, 51 Minn. 499, 53 N. W. 756. The only notice of repudiation here relied on is a letter from A. G. Peterson., clear and unambiguous enough probably, but the contract according to its terms was for sale to both A. G. and Charles Peterson. One joint purchaser is not per se agent for the other. Therefore, in absence of proof of any facts known to the plaintiff which would render the act of A. 0. Peterson effective as against Charles, the letter in question left it still bound to proceed with performance of the contract of sale and under peril of damages, at any rate to Charles Peterson, if it failed in such duty. For these reasons the letter of A. 0. Peterson could not suffice to relieve plaintiff from performance of the contract on its part, nor to prevent it from recovering the purchase piice upon such performance. Upon the facts presented we find no escape from the conclusion that plaintiff’s demand is fully established.

By the Court. — Judgment reversed, and cause remanded with directions to enter judgment according to the prayer of the complaint.