Hess Bros. v. Great Northern Pail Co.

175 Wis. 465 | Wis. | 1921

Jones, J.

The great fluctuations of prices during the last few years have brought about a flood of lawsuits. While such fluctuations have caused great loss to many persons who have contracted to buy or sell goods for future delivery, and while they afford a motive for attempting to avoid the effects of such contracts, they are clearly no cause for their repudiation. There would be little certainty or safety in such business transactions if a contrary rule prevailed.

It is urged by defendant’s counsel that the so-called embargo afforded grounds for refusing to perform the contract. The trial court found that no embargo existed on Eastern shipments at the time defendant received plaintiff’s order and that it existed only from December 18, 1916, until the first week in January, 1917.

There are many English cases holding that when the delivery of goods is prevented by acts of superior authority beyond the control of the person obligated to deliver, the nonperformance is excused during the period of the inhibition; but that the contract is not dissolved unless at the time" it should have been performed there is a reasonable probability that the inhibition will continue for such a length of time as to frustrate the object of the engagement from a business point of view. See cases cited 3 A. L. R. 29.

Evidently neither party contemplated any such probability, for although in the letter of January 3, 1917, defendant suggested that it might be satisfactory to plaintiff to consider the contract closed, the plaintiff at once gave notice that it would not be satisfactory, and the later, correspondence clearly showed that neither party treated it as closed.

There is no doubt but defendant renounced the contract. As bearing on the question of damages it is important to determine when the renunciation took place. Plaintiffs counsel claim that the breach of contract occurred on December 6, 1918, when defendant wrote that plaintiff had not lived up to its part of the contract and unequivocally refused to make shipment. Appellant’s counsel claim that the breach took place soon after July 23, 1917, since the defendant failed to ship the car which it then promised to ship in the near future. In other words, defendant relies on its own delay and nonperformance of the contract to minimize the damages.

It is plain that defendant never notified the plaintiff of any intention to repudiate the contract until December. 6, 1918. On the contrary, it made repeated unconditional promises to perform. On October 25, 1918, defendant wrote .asking for specifications of the car desired to be shipped and made an offer slightly modifying the previous arrangement, and on December- 4th made another offer to ship a car but attached the condition that a sight draft should be attached to the bill of lading. It appears that there was some correspondence not included in the record. Thus it appears that from the execution of the contract until December 6, 1918, the correspondence relating to it continued, although with considerable intervals of interruption. During all this time plaintiff insisted upon performance and defendant did not repudiate the contract, although some modifications were suggested. There was no statement that the contract would be repudiated unless the changes or modifications were made, and mere requests for changes, or objection to the terms of the contract, do not constitute renunciation. 5 Page, Contracts (2d ed.) §§ 2903, 2904.

If defendant had desired to repudiate the contract in order to diminish damages, or for any other reason,’ it could have sooner given such unequivocal notice as it gave on December 6, 1918, and the plaintiff could have obtained its supplies elsewhere. If such notice had been given it would not have been just for plaintiff to claim damages for a breach as of an earlier date, if on account of fluctuating prices such claim would be to the disadvantage of defendant, since plaintiff had been insisting upon performance. Nor can defendant complain that the action was not brought until plaintiff had notice of defendant’s intention not to perform the contract.

It is clear that time was not of the essence of the contract. Both parties throughout treated its performance as likely to be delayed, and neither party treated it as abrogated or repudiated until the final letter of defendant.

In determining when breaches of contracts take place every case must be controlled by its own facts. We are convinced that in view of the correspondence and conduct of the parties the damages should be assessed as of the date when defendant repudiated the contract, December 6, 1918, and that the difference between the contract price and the market price at the time of refusal to deliver was the proper measure of damages. Sales Act (sub. 3, sec. 1684f — 67, Stats.).

It is claimed by defendant’s counsel that plaintiff breached the contract by making two discounts of two per cent, contrary to the terms of the agreement, and that this excused performance on the part of defendant. We do not consider this point well taken, for the reason that it plainly appeared from the books of defendant that the discounts had been deducted on January 31 and September 27, 1916, and no objection had been made until December 6, 1918, when it was decided to repudiate the contract. The plaintiff might well have believed that its course of dealing was satisfactory, and this branch of the defense was waived. Wilbur v. Means, 171 Wis. 401, 177 N. W. 575.

By some mistake or inadvertence the court allowed interest from December 9, 191.6, instead of December 6, 1918. This mistake-should be corrected and otherwise the judgment should be affirmed, with costs to be paid by respondent.

By the Court. — Judgment affirmed as modified.