125 Wis. 363 | Wis. | 1905
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
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
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.