Hesser-Milton-Renahan Coal Co. v. La Crosse Fuel Co.

| Wis. | Jun 19, 1902

Winslow, J.

The claims of the appellant which are necessary to be considered are: (1) That the contract which appears in the letters and telegrams was not an absolute contract to ship two car loads of coal per week, but only a contract to do their best in the usual course of business to fill orders, and that, if Hesser & Milton were prevented from shipping coal as ordered by reason of scarcity of cars or other cause beyond their control, there was no breach of the contract; (2) that the words “subject to strikes” in the telegram of September 29th were so far of an ambiguous or uncertain nature that parol evidence should have been received showing their generally accepted meaning in the coal trade.

1. As to tire proper construction to be placed upon the contract, we think that the trial court was entirely right in construing it as an absolute contract to deliver as much as two car loads per week during the year “subject to strikes,” and that the fact of a scarcity of cars constituted no excuse for the breach of the contract, no such exception to the absolute character of the undertaking having been embodied in the letters or telegrams. The material part of tire letters and telegrams will be found set forth in the statement of facts, and it does not seem necessary to repeat them here, nor to do anything more than state our conclusions on the subject.

2. It is elementary law that the construction of written contracts whose words are plain is tire proper function of the court, but, if words or phrases are used therein which are technical, or have gained a definite and peculiar meaning in a certain trade by general usage, extrinsic evidence may be received, showing that such meaning has been acquired, and what it is. 2 Jones, Ev. §§ 461, 462. The words “subject to strikes” cannot be said to be entirely definite in their meaning. There may be a general strike in all the mines in the country, or there may be a strike confined to the plaintiffs mines alone, or to the mines in a certain district alone; or there may be a strike upon the railroad lines interrupting all traffic. Any of the strikes supposed might seriously interfere with the carrying out of the contract to deliver coal. It is •evident that, if the words here used were intended to refer to a general strike in all the coal mines of the country or in all the mines of the New River district, the plain tiff showed nothing in the way of a defense to the counterclaim; but if the words, by general usage and custom among coal dealers, meant a strike in TIesser & Milton’s own mines alone, then the undisputed fact that there was a strike in their mines for nearly a month in March and April, 1900, would operate as a defense to the counterclaim so far as it is based upon any default occurring during that time. The appellant called witnesses who were experienced in the coal trade, and attempted to show by them the construction which the words “subject to strikes” had acquired by general usage and custom in the coal trade, and the evidence was excluded. The purpose of the evidence so offered was evidently to show that the clause was satisfied by the happening of a strike in the mines of TIesser & Milton. We think, under the principles before stated, that this ruling was erroneous.

It is said, however, by respondent, that this ruling was not prejudicial, even if it was erroneous, because it is said that it appears in the case that the defendant was compelled to expend, in order to fill the pump-house contract* more than $500 in excess of the contract price before the happening of the strike in Hesser & Milton’s mines. If this fact did appeal’, it would doubtless be a complete answer to the claim of prejudicial error; but a very critical review of the bill of exceptions shows that it does not appear. The only evidence on the question is the bare statement that defendant purchased -from outside parties, to fill the pump-house contract, 1,682 tons, and that this amount cost $1,009.80 in excess of the Hesser & Milton contract price. For aught that appears in the evidence, a large part or all of the excess may have been incurred for coal bought during the continuance of the strike, and, if so, then the evidence showing the meaning of the words “subject to strikes” would be manifestly very important. It is true there is a bill of particulars in the i*ecord served by the defendant in response to a demand, which purports to give dates, and prices paid for the coal so purchased, but it is not identified or verified as correct by any witness, and hence constitutes no affirmative proof of any fact as against the plaintiff.-

In this state of the case it cannot be held that the ruling out of the proposed evidence as to the meaning of the strike clause was-not prejudicial.

By llie Court. — Judgment reversed, 'and action remanded for a new .trial.