| Wis. | Jan 10, 1911
The following opinion was filed October 25, 1910:
The appellant’s first contention is that the •court erred in holding the contract apportionable, thereby making defendant liable to pay for the logs actually delivered without requiring the vendors to deliver all of the logs as a condition to enforce payment of the balance of the purchase price for those delivered prior to May 1, 1908. True, theparties made a sale of all the timber on the specified lands, but the •contract does not specify that delivery of all the logs should be made before payment should be made for those actually delivered. The subject matter of the contract is in its nature readily severable, and was so treated' in fixing part payment for the logs as the work progressed. The parties thus apportioned the consideration in conformity to the actual execution ■of the contract. That the parties intended to apportion it is also evidenced by their conduct in paying for the logs actually delivered the first season, and by settling their mutual •claims arising as to those delivered during the first logging season. Kerslake v. McInnis, 113 Wis. 659" court="Wis." date_filed="1902-04-01" href="https://app.midpage.ai/document/kerslake-v-mcinnis-8187265?utm_source=webapp" opinion_id="8187265">113 Wis. 659, 89 N. W. 895; Badger State L. Co. v. G. W. Jones L. Co. 140 Wis. 73" court="Wis." date_filed="1909-06-03" href="https://app.midpage.ai/document/badger-state-lumber-co-v-g-w-jones-lumber-co-8189610?utm_source=webapp" opinion_id="8189610">140 Wis. 73, 121 N. W. 933; Malueg v. Hatten L. Co. 140 Wis. 381" court="Wis." date_filed="1909-10-26" href="https://app.midpage.ai/document/malueg-v-hatten-lumber-co-8189658?utm_source=webapp" opinion_id="8189658">140 Wis. 381, 122 N. W. 1057; National K. Co. v. Bouton & Germain Co. 141 Wis. 63, 123 N. W. 624.
It is urged that the provisions of the contract providing that, “as soon as all logs shall have been delivered and received by the defendant, settlement shall be made for the balance due,” and requiring the vendors to accept defendant’s notes
Nor does the stipulation in the contract providing that delivery of all the logs which were logged each season should be completed by May 1st support defendant’s contention that the contract was not severable. There is nothing in this provision showing that payment for the logs embraced in the contract was conditioned upon the delivery of all of them. The ruling of the trial court, holding the contract severable, was correct, and the contract was properly enforced against defendant.
In this situation of the case the question arises: Were the vendors of the timber in default under the contract on May 1, 1908, because they had not delivered all of the logs embraced in the contract and had not shipped all the logs that were skidded and left in the woods ? As to the skidded logs left in the woods, the contract required that defendant pay to the vendors the sum of $5 per thousand feet on the 15th of each month for all logs skidded the prior month. This the defendant failed to do by May 1, 1908. The defendant evidently refused this payment for the reason that its officers considered the other party in default in not delivering all of the logs embraced in the contract by the 1st of May. The provisions of the contract, however, do not require delivery of all of the logs by May 1, 1908; it only specified that all logs logged in the season of 1907 — 8 should be so delivered. From these conditions of the sale it follows that the vendors had a reasonable time after May 1, 1908, to complete the delivery of the logs not theretofore logged. From the facts shown, therefore, it appears that the vendors had not breached the agreement
It is well established that the defendant was in default from and after May 1, 1908, in two particulars: First, by its. failure to pay the $5 per thousand on the 15th of each month for all logs skidded during the prior month; and, secondly, by its refusal to pay the balance due on the logs actually delivered on or before May 1, 1908. These breaches by the defendant gave the vendors the right to consider the contract terminated and to dispose of the undelivered logs and uncut timber in some other way. We think the record clearly sustains the claim that defendant was in default throughout the negotiations up to the month of September; that the vendors were then freed from their obligation; and that the defendant was in no position to claim damages from plaintiff’s assignors. All the alleged detailed errors appertaining to the trial of this issue regarding such damages become immaterial and need not be considered.
The appellant contends that the court erred in submitting question No. 2-of the special verdict, embracing the inquiry as to whether the parties settled any damages defendant claimed to have suffered for alleged breaches of the contract during the first season. The facts and circumstances shown by the evidence on this subject showed a conflict between the-' parties, and warranted the jury in inferring that a complete settlement had been made by them.
We discover no reversible error in the record, and the judgment should be sustained.
By the Court. — Judgment affirmed.
A motion for a rehearing was denied January 10, 1911.