Robinson v. Marachowsky

184 Wis. 600 | Wis. | 1924

Doerfler, J.

In its findings of fact the court in substance, among other things, found that the defendant first ordered the ten bags of sugar, together with certain articles of merchandise, to be delivered at the Mauston store, and ten bags of sugar, together with other articles of merchandise, for the store at Lyndon Station; that before the shipment of the articles above mentioned, plaintiffs received the two postal cards above referred to, by which the Maus-ton order was increased from ten bags to forty bags; also that such postal cards were received by the plaintiffs on the morning of the 24th of July at about 8 o’clock, and that the telegram was received by the plaintiffs at about 1 o’clock p. m., after th¿ plaintiffs had delivered the entire shipment to the railroad company, f. o. b, and that such shipment constituted a completed delivery; that no false representations were made by, the plaintiffs to the defendant in securing the order for the sugar in question; and that there was no accord and satisfaction. No request for a finding was made by the defendant to the effect that the effort to compromise the alleged differences between the parties was made in good faith.

It appears conclusively from the record that the salesman, Robinson, started on his trip to Mauston on the 21st of July, and arrived there in the afternoon of that day. Defendant’s contention is that the order was taken on the 23d of July, and that he received notice of the break in the price of sugar immediately after sending the two postal cards and before the telegram of cancellation was sent. The record shows beyond dispute that when Robinson arrived at his place of business on the morning of the 22d he made out the formal order, which was dated the 22d. On the 23d the plaintiffs made out the bill of lading, as appears from the date thereon. The postal cards were received at about 8 o’clock on the morning of the 24th, showing that they were mailed from Mauston on the 23d. The telegram of cancellation itself bears evidence of the time of sending, and the bills of lading of the railroad company show the receipt of the shipment by the company as above indicated. It thus appears quite conclusively from the record that a determined effort was made on the part of the defendant to advance the date of the order from the 21st to the 23d, at which time his excuse for cancellation on account of an alleged break in the market would appear more plausible. This goes to the question of the defendant’s good faith in the attempted accord and satisfaction. The only expert of the defendant testified that sugar was offered at Mauston by-various dealers on the 21st for $23 per hundred, and less.

It is a well known fact that during the period of these transactions there existed a great shortage of sugar, and that for a long time prior to the 21st day of July large amounts of sugar were held by jobbers and brokers who speculated in the market. In order to relieve the situation the United States Food Administration by an order duly fixed the gross profit-of the jobbers on sugar sales. Brokers in the country everywhere were heavily indebted for sugar bought or contracted for, and in order to meet their obligations they were compelled to incur large obligations to the banks. Through the action of the Federal Reserve banks the loans of brokers and jobbers were called, and this , resulted in a demoralization of the standard price of sugar, the brokers making an effort to undersell each other in order to dispose of their holdings, so as to enable them to realize money with which to meet their loans. There is no evidence, however, that on the 21st of July any material change had taken place in the price of sugar on the market. The testimony of defendant’s expert witness was indicative of a general scramble of some brokers to unload at the best prices obtainable.

The finding of the court that there were no false representations made by the salesman as to the market price of sugar at the time the order was taken is amply supported by credible evidence, and is so strong as to be nigh conclusive in this case. It also- appears from the correspondence between the parties that when the dispute arose as to the market price of sugar at the time of the sale, the defendant merely asked for an allowance or adjustment on the basis of two cents per pound. In any event the record is absolutely devoid of any evidence which would indicate that, assuming that the market price of sugar had declined on the 21st of July, the salesman of the plaintiffs had any knowledge thereof. He left Milwaukee that morning at 4 o’clock and did not arrive at Mauston until the afternoon of that day, when he immediately proceeded to the defendant’s store. There is no evidence in the case that the salesman had any better knowledge of the market price of sugar than the defendant had. Defendant came in contact with traveling salesmen daily, who informed him of the market price of sugar, and he subscribed for a daily paper which had quotations of the market price. In the absence of satisfactory evidence showing a break in the market on or prior to the 21st of July, the learned circuit court was fully justified in its finding of fact wherein it found contrary to the claim of false representations.

The attitude of the defendant throughout the entire proceedings, wherein he attempted to advance the date of the sale of the sugar to the 23d, when as a matter of record evidence it is conclusively shown that the sale was made on the 21st, is not indicative of good faith on the part of the defendant. A careful reading of the testimony creates a strong impression that the dispute upon which defendant bases his alleged accord and satisfaction was arbitrary, unwarranted and unjustifiable, and not advanced in good faith. True, the court did not make a specific finding on the subject of good faith, but the findings actually made, taken in connection with the entire record, show that the learned circuit judge was of the opinion that the attempt to prove an accord and satisfaction was not made in good faith. As the question of good faith is one of the essential elements in an accord and satisfaction, an omission to malee a special finding on that point is equivalent to finding against it, and cannot be alleged as error. Karnes v. Karnes, 140 Wis. 280, 122 N. W. 717; Triba v. Lass, 146 Wis. 202, 131 N. W. 357; Wolf Co. v. Kutch, 147 Wis. 209, 132 N. W. 981.

An accord and satisfaction in this case would require the making of a new contract as a substitute for the old, and such a contract requires a consideration. In cashing the check the plaintiffs received that only to which they were properly and legally entitled. They were under no obligations to accept a return of the twenty-five bags of sugar, and they never did accept a return. Consequently there was no accord and satisfaction and there was no consideration.

M. Schulz Co. v. Gether, 183 Wis. 491, 198 N. W. 433; Weidner v. Standard L. & A. Ins. Co. 130 Wis. 10, 110 N. W. 246; Herman v. Schlesinger, 114 Wis. 382, 90 N. W. 460. The judgment of the circuit court must therefore be affirmed.

By the Court. — Judgment affirmed.