Hubbard Steel Foundry Co. v. Federal Bridge & Structural Co.

169 Wis. 277 | Wis. | 1919

Siebecker, J.

The appellant contends that the court erred in .finding that the evidence established (1) that the plaintiff’s representative, Mr. Johnston, at the time of making the contract with defendant' for the bridge material was informed by defendant’s representative that defendant was a subcontractor of the Blodgett Company for the construction of the raiiroad bridge; (2) that the delivery of the material had to be completed on or before August 15, 1915, to enable defendant to fulfil its contract as subcontractor; (3) that the detailed drawings for the materials were in fact furnished within the time agreed upon; and (4) that seventy per cent, of the castings furnished by plaintiff were «defective and not in compliance with the contract. An examination of the evidence shows that there is ample evidence in the record to sustain the court’s findings on these points. True, there is a sharp conflict in the evidence of Mr. Johnston and Mr. Raschig, the respective representatives of plaintiff and defendant at the time of negotiating the making of the contract for the steel castings and machinery, but it cannot be said that the trial court is clearly wrong in accepting the defendant’s evidence on these issues as the correct version of -the transaction. It is plain that the castings were so defective that about seventy per cent, had to be and in fact were rejected by R. W. Hunt & Co., who were selected by„the parties to inspect them. Manifestly this percentage of unfit castings amounted to a failure by plaintiff to comply with the contract. It is practically undisputed that plaintiff on September 1, 1915, was in default for nondelivery of a large quantity of the castings called for by the contract and that defendant was warranted in believing that plaintiff was unable to make a timely delivery of such castings as the contract called for. Under these circumstances the defendant was fully justified in standing upon the breach, declaring the contract ended, and demanding the return of the patterns to enable it to contract with other parties for the castings plaintiff had failed to deliver. The proof is clear that the items defendant specified in the exhibit served with the complaint is a correct statement of the increased cost and expenses defendant was compelled to pay in machining the defective castings and securing others to fulfil its contracts. We are persuaded that the court’s conclusions on all the litigated questions are correct. The allowance to defendant of the $2,000 item which defendant paid as agreed damages to the Blodgett Company in settlement for its breach of contract with that company needs to be considered in the light of the circumstances as disclosed by the record in the case. It is claimed that the defendant was compelled to pay the Blodgett Company $2,000 as damages caused by default of plaintiff in not delivering the steel and the machinery as required by the contract between the plaintiff and defendant. The trial court found: “Because of defendant’s failure to furnish the steel and machinery on or prior to June 15, 1915, the Blodgett Company suffered heavy damages, which damages the defendant company were obliged to pay and did pay to said Blodgett Company in the sum of $2,000.” The defendant introduced in evidence a writing dated April 13, 1916, evidencing a payment by it of $2,000 to the Blodgett Construction Company in settlement and release of all damages claimed from defendant by the Blodgett Company for defendant's failure to comply with its contract to furnish machinery and castings for constructing the bridge in question. The testimony of Mr. Jacobson as to this settlement is in effect that he, as defendant’s representative, went to New Orleans and Shreveport to adjust the differences between the defendant and the Blodgett Company arising by reason of defendant’s inability to deliver this material at the time called for by its contract and on account of which default the Blodgett Company claimed to have been damaged in the sum of $6,000; that the Blodgett Company refused to pay the defendant any part of a large sum due the defendant until such claim for damage had been adjusted and paid; that a settlement thereof was effected by him upon the terms of the written release in the sum of $2,000, which was then deducted from the amount due defendant from the Blodgett Company. When this evidence had been received by the court upon the trial the following proceedings were had:

“Mr. Jacobson: Mr. Coombs and I have agreed, that is as to the items contained, in Exhibit A of the pleadings, . . . that the amounts specified in Exhibit A are correct. They admit nothing so far as the validity of the charges are concerned ; they merely admit the correctness of the amounts.” Mr. Coombs: “There is one exception to.that, as to the amount of the interest.” By the Court: “It is admitted that the amount of the several items contained in that exhibit are correct with the exception of the interest?” Mr. Coombs: “Yes, but we don’t admit the justness of the charge.”

The $2,000 item is one of the items in Exhibit A entered thus: “April 17, 1916, adj. of acct. with our customer acct. damages suffered by him due to delivery caused entirely by your inability to deliver acceptable castings, $2,000.”

The trial court, acting on this evidence and admission, orally declared then and there that plaintiff caused and was liable in damage for the items specified in Exhibit A because of its failure to deliver the castings as required by its contract and “the amount of $2,000 paid by defendant in the settlement with the Blodgett Company.” This record and the immediate action by the court thereon persuasively show that the court and counsel understood that plaintiff denied liability for all damage on the ground that plaintiff had no information concerning defendant’s relation to the Blodgett Company for the delivery'of this machinery and steel castings, and that if plaintiff is liable that all the items it specified as damage except the interest item in Exhibit A were proper items to be recovered. It follows from the stipulation that if liability of plaintiff on the counterclaim is shown, then all items of Exhibit A except the interest charge were to be allowed as the actual amount of damages defendant sustained and that the $2,000 the defendant paid as damages to the Blodgett Company, sustained by reason of plaintiff’s breach of defendant’s contract, was to be included. This is the fair and reasonable interpretation of the stipulation in the light of the action of the parties and the court in respect thereto. It is therefore considered that the court properly awarded recovery for this $2,000 on defendant’s counterclaim upon the ground that the defendant communicated-to plaintiff the special circumstances concerning defendant's contract with the Blodgett Company and defendant’s obligation thereunder to furnish and deliver the machinery and steel castings.

This holding of the trial court is proper within the principles declared in Saveland v. Green, 36 Wis. 612; Guetzkow Bros. Co. v. A. H. Andrews & Co. 92 Wis. 214, 66 N. W. 119; Gross v. Heckert, 120 Wis. 314, 97 N. W. 952. Judgment awarded on the counterclaim is correct and must stand.

By the Court. — Judgment is affirmed.