Reindl v. Heath

115 Wis. 219 | Wis. | 1902

Cassoday, O. J.

It is undisputed that in May, 1900, the defendants declined and refused to deliver any more logs at the mill of the plaintiffs under their contract. At that time they had only delivered a little more than one half called for by the contract. The defendants justify such refusal on the ground that the plaintiffs had broken their contract in the several particulars alleged in the answer. The jury, by their special verdict, found against the defendants on all of such issues. But it is contended that some of such findings are contrary to the undisputed evidence. Thus it is claimed that the sixth finding, to the effect that the defendants gave their consent to the sawing of hardwood logs for others than tho defendants, is unsupported by the evidence. This contention ■seems to be well founded, at least to some extent, conceding that the witness A. M. Millard acted as the agent of the defendants, and had authority to represent them, and did represent them through all the business of carrying out the contract. So, if hardwood logs included elm railroad ties, then there can be no question but that the seventh finding of the jury is contrary to the undisputed evidence. The contract ■expressly covered “all the saw logs” that might be purchased and delivered, and stipulated for the price “for sawing and piling ties.” It is undisputed that the plaintiffs purchased of others timber from which was sawed 35,000 elm railroad ties. Such purchase of timber seems to have been a breach of the contract. If the'defendants sustained any damage for such breaches of contract, they should have insisted upon their ■counterclaim, instead of withdrawing the same at the close of the testimony. The question recurs whether the defendants were justified in declining and refusing to deliver the balance of the logs contracted for by reason of such breaches of the contract. That depends upon whether the agreement on the part of the defendants to deliver the logs was dependent upon the plaintiffs refraining from sawing or buying hardwood logs from others without the consent of the defendants. The rule laid down by Lord Mansfield, O. J., and often quoted ■approvingly, is “that the dependence or independence of covenants was to be collected from the evident sense and meaning of the parties, and that, however transposed they might be in the deed, their precedency must depend on the .order of time in which the intent of the transaction requires their performance.” Jones v. Barkley, 2 Doug. 691. To the same éffect, Bettini v. Gye, L. R. 1 Q. B. Div. 187; Tipton v. Feitner, 20 N. Y. 425; Cadwell v. Blake, 6 Gray, 407; Hoffman v. King, 70 Wis. 379, 36 N. W. 25. As stated by Chief Justice Shaw, and repeatedly sanctioned by this court:

“It seems to be well settled that, when there is a stipulation amounting to a condition precedent, the failure of one party to perform such condition will excuse the other party from all further performance of stipulations depending upon such prior performance. But a failure to perform an independent stipulation, not amounting to a condition precedent, though it subject the party failing to damages, does not excuse the party on the other side from the performance of all stipulations on his part.” “"When the act of one is not necessary to the act of the other, though it would be convenient, useful, or beneficial, yet, as the want of it does not prevent performance, and the loss and inconvenience can be compensated in damages, the performance of the one is not a condition to the obligation to perform by the other.” Mill Dam Foundry v. Hovey, 21 Pick. 437, 439; Hoffman v. King, 70 Wis. 382, 383, 36 N. W. 30; Sheehy v. Duffy, 89 Wis. 16, 61 N. W. 298.

The contract did not require the plaintiffs “to commence sawing” until “a sufficient amount of logs!’ should be “delivered on their mill yard to keep the mill running, and continue thereafter, as far as practicable, until all logs” should be “sawed as above specified.” There is no claim that the plaintiffs sawed logs for others to such an extent as to prevent or interfere with the sawing of all logs delivered by the defendants. It does not follow that the plaintiffs could not or did not saw all logs as fast as delivered by the defendants merely because the plaintiffs sawed 24,000 feet for Miller and 50,000 for the railroad company. Such buying and sawing logs by the plaintiffs were simply breaches of independent stipulations in the contract. We must hold that the defendants were not justified nor excused from delivering all the logs called for by the contract. This view of the case malees it unnecessary to consider other errors assigned.

By the Court. — The judgment of the circuit court is affirmed.