Rib River Lumber Co. v. Ogilvie

113 Wis. 482 | Wis. | 1902

Winslow, J.

While there are many exceptions preserved in the record, there is really but one question presented upon this appeal, and that is whether parol evidence was admissible to show the meaning of the contract between the parties. That contract provided for the sale by defendants to the plaintiff of all the lumber of certain grades “(estimated to be .about four million feet, more or less) obtained from about 6,000,000 -feet of white pine sawlogs now banked and being-hanked at West Superior.” There is no dispute as to the amount of lumber actually received by the plaintiff under the contract. That amount was 2,553,813 feet, and it constituted all of the lumber- of the grades specified (except 130,000 feet) manufactured by the respondents from 4,200,000 feet of white pine logs, which were all the logs banked by the respondents at West Superior. The plaintiff claims that the contract is clear and unambiguous, and that it bound the defendants to deliver the product of 6,000,000' feet of logs, while the defendants claim that the clause,, “about 6,000,000 feet of white pine sawlogs now banked and being banked at West Superior, Wisconsin,” shows on its face that it refers to a certain specified lot of logs, and that oral evidence of the situation surrounding the parties, and their conversations at the time the contract was made, was admissible to identify and explain what particular lot of logs was referred to by the language of the contract. The trial court took the defendants’ view of the question, and admitted evidence freely of the nature referred to, against the objection and exception of the plaintiff. It is unnecessary to describe this oral evidence in detail. It was of the nature above referred to, and showed beyond doubt that the parties were negotiating concerning a definite lot of logs and timber which the defendants were then getting out in a certain locality, and banking at West Superior, and that the plaintiff received all the lumber of the grades specified which was manufactured from that lot, except 130,000 feet. If the testimony was admissible, it established the defense, except as to the 130,000 feet; and this the court found, under sufficient evidence, was sold to another party with the consent of the plaintiff. We have no doubt of the correctness of the court’s ruling. Looking at the contract alone, we are obliged to say that it evidently refers to a certain lot of logs, namely, the logs already banked and which were in process of banking by defendants at West Superior. We do not know, however, how many feet the lot contains, except that the parties have estimated that it contains about 6,000,000 feet; but it "is entirely evident that it is the lot which is sold, and not '6,000,000 feet. Such being the situation, the case is like one where all of the goods in a certain warehouse, or shipped upon certain vessels, are sold with, the statement that they amount to “about” a certain quantity. In such case the rule is well settled that the naming of the quantity is but an estimate of the probable amount, and that the amount sold is fixed by the amount actually in the warehouse or in the vessels. Brawley v. U. S. 96 U. S. 171. Evidence of the amount in the warehouse or vessels is not parol evidence contradicting or changing a written contract, but simply evidence making certain its meaning. Terms or expressions used in a contract which are either ambiguous, or on their face show that reference must be had to extrinsic facts to make their meaning definite and certain, may always be explained or identified by parol evidence of the surrounding facts and circumstances. Ganson v. Madigan, 15 Wis. 144; Weber v. Illing, 66 Wis. 79; Becker v. Holm, 89 Wis. 86; Janesville Cotton Mills v. Ford, 82 Wis. 416.

This question being settled in favor of the defendants, there is no other question in the ease of sufficient importance to justify attention.

By the Court. — Judgment affirmed.