115 Wis. 261 | Wis. | 1902
The present action is based squarely upon the contract between the parties to enforce payment of money according to the terms of that contract, not to recover damages because of breach or renunciation. It is therefore essential- that plaintiff establish those facts which, by the terms of the agreement, were the precedent condition of defendant’s duty to pay. 1 Beach, Mod. Cont. § 409; McCormick v. Basal, 46 Iowa, 235; Lake Shore & M. S. R. Co. v. Richards, 152 Ill. 59, 38 N. E. 773; Hanna v. Mills, 21 Wend. 90; Dingley v. Oler, 117 U. S. 490, 6 Sup. Ct. 850. One of those conditions is the reception by McCord of profits upon a sale made by him above the price paid Lcvejoy. Until that situation exists, no cause of action upon the contract exists. Fail
The question presented to the trial court by the motion for nonsuit was whether the evidence, upon most-favorable view, established receipt of any profits by defendant within the meaning of the written agreement. Plaintiff contends that immediately upon sale at a higher price than that paid Love-joy the profits were made, and, if that be not so, that the taking of negotiable notes by defendant in his own name constituted a receiving by him of the whole purchase price. Much discussion and some authority is offered as to the meaning of the word “profits,” with no result save to satisfy us that such word may well carry differing meaning under variant circumstances, and that in ascertaining its significance in this contract we may be aided by the situation and the general purpose to be accomplished. The defendant was the purchaser and owner of the timber, and a dealer therein; the plaintiff made no investment, and. had no interest in the property, and obviously was not expected to take any part in its disposal. There was no limitation save the implied one of good faith upon the former’s, complete discretion as to manner and terms of sale. He might sell in parcels and on various periods of credit; he might sell for a fixed price or one dependent on— indeed, payable from — the timber or lumber produced; he might find it advisable to sell, in part at least, for something other than money, the value of which might be indefinite and only ascertainable by its sale. In the light of this situation we have no doubt that the parties used the word “profits” in the sense of the excess of the money actually received by McCord over the price paid by him to Lovejoy, and that his duty to pay would not arise until he should have reduced to money any such proceeds of the sale. Of course, his own con
•Upon such construction of the agreement plaintiff could not compel defendant to forestall or assume the contingencies of any credit he might in good faith find it necessary to give to a purchaser. It must wait until in due course he had collected the money. This situation could in no wise be modified merely by the fact that such credit was evidenced by promissory notes payable to defendant. The giving of such notes effected no change so long as he merely held them awaiting collection at maturity. If there were no doubt that such was defendant’s attitude, the decision of the tidal court that no cause of action had arisen would have been right, but the situation is complicated by other facts. In the amplitude of defendant’s control over the disposal of this property and of its proceeds is involved the power at least to so appropriate the latter to his own use as to constitute a complete equivalent for reception of their money value. Had he taken as part of the purchase price a house and lot, it would have been within his power, instead of proceeding to realize its value in money, to have elected to retain it as his homestead, so far, at least, that plaintiff might hold him to such election and insist that he must treat it as money. So, too-, an appropriation of the notes to his own use, as by discounting them, or applying them in payment of his debts, would leave no doubt that he had elected to treat them as his own, and would arouse his duty to pay as completely as if he had collected them. Mc-Cord’s attitude toward these notes was at least ambiguous by reason of his power to treat them either as mere evidence of an uncompleted payment of sale price, or as accepted by him as and for his own, free from inquiry by plaintiff as to his use or management thereof. If there is any evidence which, most favorably considered, might warrant the conclusion that
By the Court. — Judgment reversed, and cause remanded for a new trial.