217 Wis. 202 | Wis. | 1935
The f ollowdng opinion was filed December 4, 1934:
Some confusion exists in this case because of the manner of disposition of the issues, but the difficulty is more apparent than real. The court found that plaintiff sold cheese of the value of $818.28 to defendant, and that this had not been paid for. That constitutes a finding that plaintiff is entitled to recover on his cause of action. The court further found that during the previous year there had been an overpayment by defendant in a sum at least as great as the demand of plaintiff’s complaint, which amounts to a finding that defendant was entitled to recover on. the counterclaim. The court further found that it could not ascertain, or that it had not been proven to its satisfaction, that the amount due on the counter-claim exceeded that due on the cause of action. Therefore, the court balanced the recov
Plaintiff is a corporation, organized under ch. 185, of the Wisconsin Statutes, as a co-operative. Defendant is likewise organized under ch. 185, and operates as a co-operative association. Plaintiff-has been a ■member of the defendant corporation since 1914. Between August 5, 1931, and September 2, 1931, plaintiff, pursuant to an agreement between the parties, delivered cheese to defendant of the estimated value of $4,115.86, for which it was paid the sum of $3,297.58. This would leave a balance due plaintiff of $818.28. Defendant claims that during the calendar year 1930, plaintiff delivered cheese to defendant, on which defendant overpaid the plaintiff in the sum of $805.20. This overpayment is claimed to exist because plaintiff was paid a greater sum than the resale price of the cheese, less the cost and expense of doing business as provided by the contract between the parties. Defendant further counter-claimed for overpayments in 1931, in the amount of $13.08, but defendant’s proofs are claimed to show total overpayments to plaintiff of $885.98. Defendant therefore claims that, by the undisputed proof, it is entitled to a judgment of $67.70.
The appeal involves a construction of the contract between the parties. The defendant has adopted a uniform form of contract, and while there was no written contract between this plaintiff and defendant, it is conceded that the rights of the parties are to be determined as though this contract had been formally executed, and that the contract evidences the agreement between the parties. The contract is denominated a “Contract of Purchase and Sale.” The agreement on the part of any Local joined to the federation under such a contract is that it will sell to the federation all cheese produced by or for such Local of the styles which the federation regu
•It is the contention of the defendant that, being a cooperative organized not for private profit but for the benefit of its members, the federation must be understood to contract only to pay the actual resale price less expenses. In other words, that it agrees ultimately to pay only such a sum as represents the difference between the resale price and the federation expenses; that the payments provided for on the 20th of the second month after delivery are merely advances, and that in case of overpayments the association may recover. Plaintiff, on the other hand, contends that this is an ordinary contract of purchase and sale; that the payments to be made
This results in the conclusion that the judgment of the trial court dismissing the counter-claim must be affirmed; that its judgment dismissing plaintiff’s complaint must be reversed, with directions to grant judgment as demanded by the complaint, plaintiff to have costs in this court
By the Court. — Upon plaintiff’s appeal,- judgment reversed, and cause remanded with directions to enter judgment for plaintiff; upon defendant’s appeal, judgment affirmed.
A motion for a rehearing was denied, with $25 costs, on February 5, 1935.