58 Wis. 314 | Wis. | 1883
The contract is 'that the respondent sells to the appellant, and agrees to deliver to him at a certain mill, 1,000,000 or more, feet of merchantable pine lumber, tó be cut and sawed into certain lengths and sizes or dimensions as directed from time to time by the appellant,— the length to be within twelve and forty feet; three per cent, of it to be forty feet in length, and seventeen per cent, between twenty-four and forty feet in length. “ Said lumber to be cut into timber and dimensions principally, and to be delivered on skids at end of mill, assorted in lengths, but not in sizes, except as to boards, plank, and other dimension, if any, smaller than four-inch by four-inch, all of which last-described kinds shall be piled separately, each kind by itself.” There had been delivered “ on the skids at end of mill ” 359,421 feet, and carried away by appellant, and the instalment due within thirty days after delivery had been paid, and the balance was not due until the completion of the contract. The appellant had suffered some inconvenience and damage in assorting out the lumber of the quality and kinds required by the contract from “ culls ” and other damaged and inferior lumber piled with it promiscuously on the skids, and refused to receive any more of the lumber required by the contract, unless separated from other kinds of lumber, and thereupon the respondent rescinded the contract on his part and gave notice thereof to the appellant, and refused to deliver any more of said lumber, and has brought this suit in replevin for the lumber delivered, and which was not already paid for, and was' not to be paid for until the contract was fulfilled, under a clause of the contract which continued in the respondent the title of the property until paid for.
There was much evidence tending to prove that the lum
The construction of the contract in this respect is the main question in the case, and which determined the action of both parties. There are many other questions of law discussed in the briefs of the learned counsel very interesting and important in a proper case, but this is really the only material question in this case, and so the learned judge before whom the cause was tried evidently regarded it, and in his instructions to the jury places upon the contract the following construction as to this question: “ The contract provides that the defendant shall keep the lumber agreed to be purchased away from the skids, so as not to interfere with the running of the mill.- There is no mention made in the contract of culls, and no agreement on the part of plaintiff to separate the culls from the merchantable lumber. He was, therefore, under no obligations to do so, but it became the duty of the defendant to remove from the common pile, as it was run out of the mill, all the merchantable lumber in time to prevent any serious inconvenience in running the mill.” We are compelled to differ from the learned judge in such a construction of the contract. The delivery' of the lumber of the proper quality, sizes, and dimensions
There should be such an offer of delivery by one party that the other party could intelligently accept or reject it, without anything required to be done by him involving ■delay, labor, and expense. This proposition is too evident for argument. Would it be a good offer to deliver a certain ■quantity of merchantable wheat in a certain bin in a warehouse, mingled with chaff and inferior qualities and other kinds of grain, and must the purchaser be at the delay and ■expense of its separation? In respect to anything which is .susceptible of being mingled with that which is not called for by the contract, of the same general kind but of inferior ■quality, and of different sizes and dimensions, there must be .a delivery, or offer to deliver, the specific kind and quality required.
In this contract the appellant was required to use expe
We are of the opinion that the contract required the respondent to deliver on the skids the merchantable lumber called for by the contract, so assorted and separated from any lumber of inferior quality or of other dimensions as to be capable of identification, and the kinds of lumber of a merchantable quality set apart and separated from the common lot as required by the contract, and until this was done there was no sufficient offer to deliver so as to place the appellant in default for not accepting and carrying it away.
It follows, of course, that in this case there was no good cause or legal ground for the rescission of the contract, and
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.