| Wis. | Sep 25, 1883
It is admitted that defendant, retained the fencing lumber, and that he actually used some of it. So far as that portion of the lumber is concerned there was no offer to return. Now, how does that fact affect his liability as to the rest of the lumber, or his right to refuse to accept it because not complying with the contract? This turns upon the question whether the contract for the purchase of the fencing and barn lumber was entire, or whether they were •several and distinct contracts. The learned counsel for the ■defendant claims that the contract for the purchase of 'the fencing was entirely independent of the contract to purchase the barn lumber, and that the lumber on one agreement might be accepted, while the lumber on the other was rejected because not such as contracted for. Looking at the bills alone, the matter is left in doubt whether the fencing .and barn lumber were purchased under one contract or not. Eut there is considerable testimony which tends to prove that the purchase of the fencing was not connected with the ■contract for the barn lumber,— that it was an independent matter, that lumber being put in to fill Blakely’s car and ■“ make a load.” On the trial before the justice we understand the plaintiff himself testified that the fencing was not .a part of the barn lumber bill, and “ had nothing to do with it.” There is other testimony in the case of the same purport. It would not be proper to express an opinion as to the effect of the testimony on this point; but it seems to us it was a fair question to be submitted to the jury as to what the real fact was. The learned circuit court did not submit the question as it should have done,' whether the contract
In the event the jury had found that the contracts were distinct, then obviously these questions would arise: (1) Was the lumber sent for the barn substantially what was contracted for, so as to fulfil that contract? The defendant insists that it was not of the dimensions, kind, or quality specified, therefore he was not bound to accept it. It is admitted that no 26-feet or 36-feet pieces were sent, as specified on the carpenter’s bill; but the plaintiff says that the agreement was that shorter pieces which could be spliced were to be furnished in lieu of the long lumber. The parties further disagree as to whether some of the other lumber furnished on the barn bill was of the kind and quality specified. Obviously this was a question for the jury to determine from the evidence. (2) If it should be found that the timber and lumber furnished for the barn were not such as was contracted for, then the further inquiry arises whether the defendant so dealt with this lumber as to render himself liable to retain and pay for it. This seems to have been the controlling point in the mind of the learned circuit judge •, for, after deciding as a question of law that the contract for the purchase of the fencing and barn lumber was one contract, he charged as follows: “ If the lumber in question was shipped to Darlington by plaintiff, upon defendánt’s order or agreement to buy lumber to be received by defendant at Darlington, and the lumber was received by defendant at Darlington and carried into the country, and a part of it used by him, and the remainder was not returned to Darlington with an offer to return it to plaintiff at the place from which defendant took it, then there was an acceptance in law of the lumber which renders the defendant liable for the lumber at the agreed price. If there was a shortage in the lumber, it was an acceptance of the lumber less the
We think there is material error in this charge. It de-' cides a question which should have been left to the jury, namely, whether the contract was entire or not. It gives prominence to the circumstance that the fencing was used,— a fact of no significance if that lumber was purchased on another agreement. Again, the court holds, in effect, that it was necessary for the defendant — if he desired to relieve himself from liability to accept, on the ground that the lumber and timber furnished for the barn were not such as were contracted for — to haul such lumber and timber back to the depot, in Darlington, and notify the plaintiff that it was there, subject to his order, on his being repaid the freight which he had advanced. How, this lumber came to Dar-lington in a railroad car; the' defendant had never seen.it. Of course, he had the right to remove it from the car to some suitable place where he could examine Mt and see if it was of the kind and quality purchased. It appeared the de-; fendant lived about a mile from the depot. He hauled the lumber home, and, on examination, found (as he says)/that-it was not such as he had contracted for. He notified the plaintiff of the fact, saying he was willing to use the lumber sent which corresponded to his order, providing he was permitted to get the other lumber at the yards in Darlington at the plaintiff’s expense, — he, of course, paying the contract price. The plaintiff declined to accept this proposition, insisting that he had sent lumber of the dimensions, kind^and quality which he had agreed to furnish. How, what, under the circumstances, was the defendant bound to do, assuming that his claim as to the defective character of the lumber
By the Court.— The judgment of the circuit court is reversed, and a new trial ordered.