117 Wis. 468 | Wis. | 1903
The single question at' issue upon this appeal is whether, under the logging contracts set forth, the plaintiff became obligated to furnish the cars on which to load the logs,, so that failure to furnish them in quantities adequate for loading at the contract rate constituted breach of plaintiff’s, contractual duty. The general rule is that one who undertakes to accomplish a certain result, by necessary implication agrees to supply all means necessary to such result. Savage v. Whitaker, 15 Me. 24; Godkin v. Monahan, 83 Fed. 116; Meekins v. Newberry, 101 N. C. 17, 7 S. E. 655; Currier v. B. & M. R. R. 34 N. H. 498, 510. This general rule is subject to the qualification that, if any step toward such result is necessarily dependent upon the doing of any act or supplying of any facilities wholly under the control of the other
What has been said up to this point is based wholly on the first and second contracts, under which defendants’ duty extended only to loading the logs on the cars. Under the December 1, 1899, contract, which required them to deliver the cab-loads of logs at a station some distance from the point of loading, the implication of a duty to obtain the cars necessary to accomplish that result seems to us so irresistible as not to require or warrant argument. The making of that contract, under which defendants are so plainly bound to obtain neces
Appellants largely rest their contention upon Boyington v. Sweeney, 77 Wis. 55, 45 N. W. 938, which, it must be confessed, presents at least enough apparent similarity to challenge consideration. There Sweeney contracted to cut and sell his own logs to Boyington,- making delivery by loading on cars at specified side track, “as ordered by” Boyington, and to furnish crew enough to load forty cars, and more if practicable, per day. There was much evidence of the situation, showing necessity that Boyington should be able to regulate rate of delivery, and also understanding that he had already provided by contract with the railway company for supply of cars on his order. The court held, independently of this evidence, however, that the writing, upon its face, by implication imposed that duty on the purchaser. That conclusion rested upon two considerations: first, that there was an implied duty upon Boyington to accept and receive the purchased logs at the place of delivery, which indicated that the receptacle of delivery, namely, the car, was treated by the parties as his; but more especially the implication was derived from the phrase “as ordered” by him, which was held to express the understanding of both parties that the supply of cars for the purpose of receiving the logs was placed within the regulation and control of the buyer; such construction being strengthened by the specification of Sweeney’s obligation to furnish sufficient crew. On such construction of that
Eor the reasons stated, we cannot avoid the conclusion that the written contracts, upon their face, hy necessary implication imposed on appellants the duty of obtaining the cars upon which they had agreed to load the logs, and therefore fail to support any cause of action against respondent.
Appellants, however, press upon our attention an allegation in each counterclaim to the effect “that under such contract it became and was the duty of the plaintiff, and at and prior to the making of said contract the plaintiff promised and agreed,” that it would supply cars, etc. This allegation cannot change the situation. The assertion of plaintiff’s duty under the written contract is, of course, only a declaration of the pleader’s construction, and of no force unless supported by the writing itself. The fact that, at and prior to the making of the written contract, plaintiff promised to furnish cars, can be of no force, unless- that contract can be held not an attempt to reduce to writing the whole agreement between the parties. If it was such an attempt, and so intended, all contemporaneous or prior promises not embodied therein are deemed to have been abandoned. Herbst v. Lowe, 65 Wis. 316, 320, 26 N. W. 751; Godkin v. Monahan, 83 Fed. 116. It is not enough for the admission of extrinsic agreements that the writing fails to express the whole contract which the parties made. On the contrary, it must be apparent that they did not intend so to do-. The typical case is where the obligation of only one of the parties is written, as in a promissory note or a promise to convey property. Brader v. Brader, 110 Wis. 423, 432, 85 N. W. 681. No one can read either of the elaborate documents sued on, setting forth, as they do, obligations assumed by each of the parties with great detail and exactness, and being signed by both, without being convinced that the effort and intention were to place within the four
By the Oourt. — Order affirmed.