70 Wis. 372 | Wis. | 1888
The mill at which the lumber was sawed was situated on ITog island, so called. It had the capacity of manufacturing about 12,000 feet of lumber per day. To aid in handling the lumber thus manufactured, there was a car track constructed, extending out from the mill some four or five hundred feet, and elevated from two to seven feet above the ground. Along one side of this track, and perpendicular to it, skids were placed, upon which the lumber contracted for was to be piled or delivered by the plaintiff when removed from the car. Such delivery was to be made as fast as the lumber could be sawed by the
It appears from the evidence that whenever there was a thaw, so as to make it impracticable to draw the lumber to the railroad station over the corduroy roads, the defendant allowed it to accumulate, more or less, on the skids along the track running out from the mill. Thus, it is said that some time in January, or the fore part of February, 1882, and when there was only about 50,000 feet upon the skids, it was so accumulated at certain points along the track as to make it necessary on the part of the plaintiff to stop the mill for a few hours and pile the lumber back further from the track; and that the same was substantially repeated a week or two afterwards. No rescission of the contract, however, was attempted or is claimed by reason of either of those accumulations. But about March 6, 1882, such lumber was again allowed to accumulate upon such skids, until it reached about 200,000 feet, when, it is claimed, the mill was necessarily stopped for a few days, and the same was piled back further from the track, by the procurement
The defendant never received any portion of this 200,000 feet, and of course the lumber here replevied includes no part of it. On the contrary, it stands confessed by the plaintiff, that he forbade the defendant from removing any portion of it unless he would first pay the expense and damage consequent upon such failure to remove; Avhereas the defendant claims that he was prevented from removing such lumber by the plaintiff himself, and besides was excused from such removal under the decision on the former appeal (58 Wis. 314), by reason of the mixture with it of inferior lumber by the plaintiff. The defendant never received any of the lumber contracted for, except the 359,421 feet mentioned, which the defendant had hauled from the mill to the railroad station. It is conceded that a very large portion of the lumber thus contracted for was never delivered upon the skids, nor sawed by the plaintiff. This action is only to recover 175,984 feet of the lumber which the defendant had thus hauled to the railroad station. It
The fact thus determined'by the jury is one deemed of special significance on the question of rescission by the more recent English cases. Thus Lord Coleeidg-e, G. L, said, as the result of conflicting- cases, “that the true question is whether the acts and conduct of the party evince an intention no longer to be bound by the contract.” Freeth v. Barr, L. R. 9 C. P. 213. In a more recent case, Jessel, M. E., said that “ there is no absolute rule which can be laid down in express terms as to whether a breach of contract on the one side has exonerated the other from performance of his part of the contract.” . He then reiterates the rule above quoted from the chief justice, and adds, “that makes it a question of evidence.” Mersey S. & I. Co. v. Naylor, L. R. 9 Q. B. Div. 057. The same rule -was sanctioned in the same case on appeal in the House of Lords. L. R. 9 App. Cas. 438, 439. In such submission to the jury they were, in effect, charged that “the only question they should consider was whether there was such rescission by such mutual agreement of the parties.”
This brings us to the question whether there was any error in the court holding, as a matter of law, that there had been no valid rescission of the contract by reason of
We are not here called upon to consider whether, upon the facts stated, the plaintiff would have been excusable for any delaj7 or failure to deliver the unsawed balance of the million feet of lumber, nor whether he was excusably for refusing to let the defendant have the lumber which had thus been delivered and still remained upon the skids, nor whether he was entitled to a lien upon that lumber for the expense and service of removing it from the skids back further into the yard. This action is to reclaim a portion of the lumber which had been previously delivered, ac-' cepted, and hauled to the railroad station. The plaintiff did not return, nor offer to return, any of the money he had received in part payment thereof, and he makes no claim, to any rescission or attempted rescission of the whole contract. Ordinarily a party must rescind a contract in toto or perform it. lie cannot rescind it in part and affirm in part. Hendricks v. Goodrich, 15 Wis. 679; Hyslip v. French, 52 Wis. 510-517; Gale v. Nixon, 6 Cow. 445; Mansfield v. Trigg, 113 Mass. 350. With the facts necessarily found by the jury as verities in the case, the plaintiff’s right to recover, therefore, is based entirely upon the theory that the contract was divisible, and that the defendant’s failure to keep the lumber from accumulating upon the skids was such a breach as authorized the plaintiff to rescind so much of the contract as did not relate to the lumber which had been hauled to the railroad station, and upon which the first instalment had been fully paid, and then to affirm
There are certainly some difficulties in maintaining this theory as applied to the facts. “ The rules of law on the subject of conditions in contracts are ” said to be “ vary subtle and perplexing.” 2 Benj. Sales, § 852. This perplexity often grows out of attempts to applj'' a supposed fixed general rule to facts to which it is not applicable. ^Without attempting the difficult, if not impossible, task of anatyzing and reconciling the numerous apparently, if not really, conflicting decisions in this country and England, it may be well to reproduce a few general rules, as stated by Chief Justice Shaw in a case cited and relied upon by counsel on both sides. Mill Dam Foundry v. Hovey, 21 Pick. 417. He there said: “ It seems to be well settled that when there is a stipulation amounting to a condition precedent, the failure of one party to perform, such condition will excuse the other party from all further performance of stipulations depending upon such prior performance. But a failure to perform an independent stipulation, not amounting to a condition precedent, though it subject the party failing to damages, does not excuse the party on the other side from the performance of all stipulations on his part.” Page 437. “ That in order to construe a stipulation on one side to be a condition precedent to an obligation to perform on the other side, it must, in general, appear, either (1) that the undertaking on one side is, in terms, a condition to the stipulation on the other; as where one stipulates that he will perform the thing to be done, if the other shall have first performed some stipulation on his part; and even when words are used which might be construed to be a condition in their ordinary sense, they shall not be so consid
Here the lumber was to be delivered upon the skids as fast as sawed. The first instalment per thousand feet was to be paid thereon “every thirty days” after each such delivery. Such delivery, therefore, may have been a condition precedent to such payment; and it may be assumed that such payment, when due, was a condition precedent to
We must hold that such stipulation for keeping the lumber from accumulating upon the skids was an independent agreement, for the breach of which the plaintiff had mistaken his remedy.
By the Gourt.— The judgment of the circuit court is affirmed.