80 Wis. 54 | Wis. | 1891
It seems necessary again to state the rule that this court will not reverse the findings of the trial court upon disputed questions of fact, except upon apparent satisfactory preponderance of the evidence against the findings, and this rule applies to a case where the testimony was taken by a referee and reported to the court, as well
The principal findings which are sought to ‘be reversed are those wherein it was found that no person was agreed upon as mutually satisfactory to both parties to make an estimate of the amount of lumber sold, and that no estimate under the terms of the contract was in fact made; and that it was agreed that the shipping scale or measurements, taken from time to time as the lumber was shipped, should be taken in determining the quantity of lumber shipped by the McDonalds, before the estimate provided by the contract should be made.
It appears that on the 1st of July, 1882, the plaintiff’s agent, A. A. Hosmer, who transacted all her business, wrote and sent to the McDonalds a letter, in which he proposed that one McPhail should attend to the estimating of the lumber in the pile, and requested that if this would be satisfactory to them (the McDonalds) they tell McPhail to go to work at it at once. This, letter was not replied to. Hosmer also wrote McPhail at the same time, asking him to see McDonald, and find out if it would be satisfactory to have him (McPhail) estimate the lumber. McPhail testified that, he saw D. McDonald, and. that McDonald expressed himself as satisfied that McPhail should make the estimate. McDonald denied this conversation, and claims that the conversation with McPhail was simply to the effect that he (McPhail), acting for Mrs. Hosmer, and one McCam-mond, acting for the McDonalds, should count and keep track of the lumber as it was shipped.
It further appears that McPhail and McCammond did
Doubtless a party may be estopped by silence when he ought to speak as well as by words, and, if these facts stood alone, we might feel compelled to adopt appellant’s view; but there are many other facts- in the case which bear more or less directly upon this question. The testimony is voluminous, and we cannot undertake here to recount it; but it is sufficient to say that there is considerable testimony relating to the subsequent conduct of the business, and correspondence and intercourse between the parties, which tends strongly to prove that neither party understood that a mutually satisfactory estimator had ever been agreed on. As the lumber was shipped, frequent statements were forwarded by the defendants to ilosmer of the amounts shipped according to the actual measurement; frequent
A serious question is, however, raised by appellant as to the construction of one part of the written contract. The contract provides substantially for the purchase by defendants of all merchantable lumber manufactured at the mill of the Marathon Lumber Company for Hosmer, during the seasons of 1881 and 1882, except the amount previously delivered to P. W. Freeze, Green Bay Railroad Company, C. Starkweather, and Frambach. It appears that at least 58,000 feet of Hosmer’s lumber had been shipped from the yard in 1881 to Gile & Gillett, and appellant now claims that defendants must acco'unt for this lumber, because
Doubtless, if .there were no other, provisions of the contract bearing on the question, appellant’s position would be impregnable. But there are other clauses in the contract which bear on the question, and it is elementary that the construction must be a construction of the whole contract, and not of disjointed parts taken separately. The contract provides that the plaintiff will actually deliver the lumber embraced in it, and further that the amount of lumber embraced by the contract shall be determined by estimating the same in piles in the yard of the company. There is no pretense that the G-ile & Gillett lumber ever was delivered to the defendants, and it is manifest that it could not be actually delivered, nor could it be estimated in piles in the yard. Now, in this manifestly contradictory state of the contract, it might with much force be argued that, in the absence of all testimony, a proper construction of the whole contract should be that it was only the lumber actually delivered and piled in the yard that was sold; but, however this may be (and we do not decide the question), it is plain that evidence of the practical construction given to the contract by the parties in their subsequent dealings under it, is properly to be considered and is of much weight in determining the proper construction. The evidence indicates clearly, to our minds, that the parties, in their subsequent dealings, did not consider that the Gile & Gillett lumber was included in the sale, and such was the conclusion of the circuit court.
This substantially disposes of the questions raised bn this appeal.
By the Court.— The judgment of the circuit court is affirmed.