150 Wis. 341 | Wis. | 1912
The following opinion was filed May 14, 1912:
The defendant contends that the order for the lumber was never subscribed by the plaintiff as required by sec. 2308, Stats. (1898), because it was signed in typewriting and hence was void under the statute of frauds. The question is not material because of reasons hereinafter stated, but if it were, the signature is sufficient to meet the calls of the statute. Mezchen v. More, 54 Wis. 214, 11 N. W. 534; Dreutzer v. Smith, 56 Wis. 292, 14 N. W. 465; Finlay v. Prescott, 104 Wis. 614, 618, 80 N. W. 530; subd. 19, sec. 4971, Stats. (1898) ; sec. 4192, Stats. (1898); Cummings v. Landes, 140 Iowa, 80, 83, 117 N. W. 22; Herrick v. Morrill, 37 Minn. 250, 33 N. W. 849.
But it is argued that the contract is void under the statute of frauds because it was not signed by .the defendant. On October 4, 1907, the defendant shipped a carload of lumber to plaintiff under this contract and plaintiff accepted and received the same. This was a sufficient part performance to take the case out of the statute. Amson v. Dreher, 35 Wis. 615; Gano v. C. & N. W. R. Co. 66 Wis. 1, 27 N. W. 628, 838; Mason v. H. Whitbeck Co. 35 Wis. 164; Schmidt v. Thomas, 75 Wis. 529, 44 N. W. 771; Prairie Grove C. Mfg. Co. v. Luder, 115 Wis. 20, 89 N. W. 138, 90 N. W. 1085; Merriman v. McCormick H. M. Co. 96 Wis. 600, 71 N. W. 1050; J. H. Silkman L. Co. v. Hunholz, 132 Wis. 610, 112 N. W. 1081.
The defendant concedes the correctness of the legal proposition, but contends that under its letter of September 27th the carload of lumber which defendant delivered was not shipped by virtue of the written order, but, at best, under a proposed modification of such order, which if accepted would extend the time of delivery for five months from the date of the letter. We do not so construe it. At the time it was
Defendant next contends tbat there can be no recovery because plaintiff refused to pay for tbe carload of lumber which was shipped to it. This position is not tenable. There was nothing due on tbe purchase until tbe expiration of sixty days from tbe date of tbe invoice. By tbat time tbe defendant bad already breached its contract and it was apparent tbat tbe plaintiff would suffer considerable loss in consequence of such breach. Eurtbermore, tbe ease would seem to fall within tbe principle of Campbell & C. Co. v. Weisse, 121 Wis. 491, 99 N. W. 340, but it is unnecessary to pass on that question.
Tbe appellant urges tbat tbe court erred in refusing to give tbe following instruction:
“The court instructs you tbat this order only calls for 'No. 2 common and better.’ Under tbe law tbe defendant was entitled to determine and select tbe grades of lumber to fill this order, and tbe amount of lumber in each grade to be delivered, except tbat no lumber could be delivered tbat would grade lower than No. 2 common, and tbe material delivered would have to contain some lumber of a higher grade than No. 2 common.”
We think tbe instruction was incorrect as a matter of law, and would be irrelevant if it were correct in the abstract. As we read tbe order, tbe defendant did not have the right to
It is urged that the court also erred in refusing the following instruction:
“The court further instructs you that in this order the defendant was by law entitled to deliver, as No. 2 common, all lumber that would cut fifty per cent, clear, and as No. 1 common all lumber that would cut two thirds clear, under the rules of inspection adopted by the National Hardwood Association, without, however, considering wane or hearts on corners as a defect.”
This instruction was immaterial to the issues on trial. It was also incorrect. Under it a 4x4 which graded above No. 3 common would have to be taken by the plaintiff if it contained wane that could not be turned off in the process of manufacturing croquet balls, and likewise a piece of lumber that had heart near the middle of it, although it might be wholly worthless for the purpose for which it was purchased.
This testimony was offered to show the difference between a straight grade of No. 2 common and better and No. 2 common and better from which was excluded all pieces of lumber which had either wane or heart that would not turn off in the process of manufacturing croquet balls. If true, it showed that very little No. 2 common would come up to the specifications of the contract, and would justify plaintiff in buying a small amount of No. 2 common in the market. There was variance in the testimony as to the percentage of No. 2 common that would ordinarily be found in a log run of No. 2 common and better, running from thirty-three and one-third per cent, to seventy-five per cent. The plaintiff purchased only about eighteen per cent, of No. 2 common, and it was proper enough for it to show why such a large proportion of high-grade lumher was purchased. Under Mr. Garton’s evidence it is more difficult to find justification for buying so much No. 2 than for buying so little. It is very evident that if a large percentage of No. 2 common, as ordinarily cut, would have heart and wane defects that would not work out in the process of manufacturing the balls as required by the contract, no economy would result from buying this kind of lumber.
The plaintiff, not being able to get dry 4 x 4’s of the required quality in the market, was compelled to buy wider dimensions and resaw them. This process necessarily resulted in a large amount of waste material and in considerable expense to cover the cost of resawing. The witnesses Garton and Shufflebottom were each asked: “What quantity of four-inch planks corresponding nearly to and not falling below the quality of grade No. 2 common and better would be
Lastly it is contended that the damages are excessive. The court computed damages on the verdict as follows: 130,660 feet at $30.76 per thousand, $4,019.10; cost of resawing, $261.32; total, $4,280.42. From this was deducted for value of waste material, $489.90, and the cost of 98,000 feet at the contract price of $23, $2,254. Total deductions, $2,743.90, leaving $1,536.52 damages. From this amount the court made a further deduction of $136.52, because the
Tbe appellant contends that damages should have been assessed upon tbe theory that tbe 110,382 feet of lumber purchased produced as many croquet balls as tbe 98,000 feet would have produced, wbicb the defendant agreed to furnish biit did not furnish, and that damages'should be assessed on' this basis. The claim is based, on a statement in tbe bill of particulars furnished by plaintiff, wbicb recited that there was a waste of at least 12,462 'feet in resawing tbe 110,382 feet of lumber purchased and used, and on a computation of damages made on this assumption. Tbe plaintiff did not assume to know tbe exact amount of waste that would result from cutting up tbe lumber purchased, and tbe figures given represented an estimate somewhat guardedly made. Tbe plaintiff does not say that tbe waste would be 12,462 feet, but that it would be at least that much. Tbe actual amount of waste was something that it was difficult to determine with mathematical certainty, unless tbe plaintiff kept track of every board as it went through its factory, and this it did not do. Tbe matter of determining tbe amount of waste was submitted to tbe jury without objection and it reached a conclusion that is sustained by tbe evidence. .We do not think
By the Court. — Judgment affirmed.
A motion for a rehearing was denied October 8, 1912.