Murphy v. Sagola Lumber Co., 125 Wis. 363

Murphy v. Sagola Lumber Co.

125 Wis. 363 | Wis. | 1905

WiBrsnow, J.

The trial court held that the defendant breached the contract by refusing to forward lumber until the plaintiffs forwarded the last half of the consideration. Were there no other facts bearing upon the refusal to forward the lumber we should have no difficulty in agreeing with the *367conclusion, but there are other undisputed facts which seem to ns of paramount importance and which demonstrate that the plaintiffs first breached the contract.

The contract was simple and easily understood. It provided for the purchase by the plaintiffs and the delivery by the defendant of 1,000,000 feet of lumber in parcels as ordered. The -lumber was to be put “free on board” cars by defendant at Sagola. This was plainly shipment and delivery by the defendant. When this was done the title passed to the plaintiffs, and the lumber was at their risk if it corresponded in quality with the provisions of the contract, and there is no claim that it did not. The amount of lumber to be paid for was necessarily the amount put upon the cars at Sagola (provided it conformed with the contract), not the amount taken off the cars at Green Bay. Hence, under the terms and necessary implications of the contract, while the plaintiffs might tally the lumber at Green Bay on its arrival, and this tally would be some proof of the amount loaded on the cars at Sagola, they had no right to say that they would only pay for the amount received at Green Bay. If such was the definite position taken by them during the progress of shipments, it was a breach of the contract, for the contract was to pay for the amount put onto the cars at 'Sagola. We think that the evidence very clearly shows that such was their position and claim. When the shipment of November 18th was received they at once sent back a statement showing that it was 480 feet short, and deducting the shortage from the defendant’s credit. The defendant wrote, requesting the plaintiffs to send a man to Sagola to tally out a lot with defendant’s man, if there could be no agreement on the tally. To this letter plaintiffs made no reply, but on January 23d, following, sent to defendant a voucher for the amount then shipped in excess of the first half million feet, ■deducting the alleged shortage, and required a receipt in full •of the account before it would be paid. This seems a very *368clear indication, that the plaintiffs claimed that delivery was to be made at Green Bay, and that they would only pay for the amount actually received at that point. That this was their position is further evidenced by plaintiffs’ letter of January 20th, in which they say they will pay as cars are received and unloaded; also by the testimony of one of the plaintiffs, who said, “We refused to pay for any of the lumber until it was received by us in Green Bay.” Of course, the plaintiffs had a right to inspect the lumber received at Green Bay, and reject the same if not in accordance with the contract. They also had the right to tally it, and such tally would be some evidence as to the amount actually delivered by loading on the cars at Sagola. But they had no right to insist that they would only pay for the amount received at Green Bay, regardless of the amount loaded on cars at Sagola. This latter position was clearly the position which they took. "When this position was definitely taken by the plaintiffs, late in January, 1903, shipments were suspended for a time; but it is evident that the plaintiffs did not regard it as a final suspension, for on the 18th of Eebruary they requested the defendant to ship the balance of the lumber. In reply to this the defendant again suggested that, if there were to be differences in the tally, it would be better to have the tally corrected at Sagola. The plaintiffs rejected this suggestion as unnecessary, and the defendant on Eebruary 21, 1903, declined to ship unless plaintiffs agreed definitely to accept inspection and tally at Sagola as final, or advance $5,000, when they would proceed to ship all. The defendant had already submitted to the slight cut which plaintiffs made on the November shipment by accepting the money sent in January in full, but we do not regard this act as foreclosing it from insisting on the proper construction of the contract as to future shipments. The ground had been taken by plaintiffs that the lumber was to be delivered at Green Bay, and that only the lumber so delivered was to be paid for; *369and the defendant, by the letters last quoted, substantially took the ground, which we believe to be the proper one, thát under the terms of the contract the lumber was delivered when loaded on cars at Sagola, und must be paid for if of the quality required.

Viewed in the light of all the circumstances, the plaintiffs’' letters can only be construed as a demand that the lumber be delivered at Green Bay, and that only lumber so delivered would be paid for, when the contract provided for its delivery at Sagola. This was an announcement that they declined to carry out the contract according to its terms, and the defendant thereupon had the right to refuse to further execute' .the contract on its part. Nor were the rights of the parties affected by the offer of the defendant to deliver at Green Bay on condition that advance payment be made for the balance of the lumber. This amounted simply to an offer to vary the terms of the contract, which was not accepted by the plaintiffs. The conclusion reached upon this question renders unnecessary any consideration of the custom found by the jury,, or of any of the other questions discussed by counsel.

The defendants were entitled to judgment upon the evidence and the verdict, and, the proper motion for judgment having been made in the trial court, there is no necessity for further trial.

By the Court. — Judgment reversed, and action remanded with directions to enter judgment for the defendant dismissing the complaint.