194 Wis. 520 | Wis. | 1928
The principal contentions made by the plaintiff here are (1st) that the terms of the 1922 contract have not been varied by proof of a general custom as contended for by the defendant; (2d) that the custom was not proven upon the required positive, clear, and satisfactory testimony; (3d) that the evidence is not sufficient to support the judgment in favor of the defendant against the plaintiff; and (4th) that the defendant established no right to a setoff with respect to the transaction in 1918.
Before proceeding to consider the issues in the case it is necessary to dispose of a preliminary question. Judgment in this case was entered July 29, 1926, and notice of entry thereof was served July 31, 1926. On June 9, 1927, an order to show cause was obtained why an extension of time should not be made for preparing and settling a bill of exceptions, and on June 18, 1927, an order enlarging and extending the time to the 29th day of July, 1927, was made. It appears from the affidavits that the defendant consented to an extension of the time until the 1st of December, 1926. On January 18, 1927, demand was made for payment of the judgment, and thereafter there were repeated demands. The excuse offered by the plaintiff is that Mr. Scaramelli did not return to the United States until the fall of 1926; that he was unable to decide whether or not to take an appeal because:
“First, the plaintiff acted as agent in this matter for the firm of Notari & Company in Italy, and before deciding whether or not the case would be appealed the plaintiff had to familiarize himself with the details as far as possible and communicate with the principal, Notari & Company of Bologna, Italy.
“Secondly, that the affiant was not personally acquainted with his Milwaukee attorneys.
“That after a long lapse of time he finally received a communication from the principal in Italy to the effect that the principal would not pay, therefore making it necessary for affiant to carry on this appeal at his own expense.”
This matter is discussed in Ward v. Racine College, 176 Wis. 168, 185 N. W. 635, where it is said:
“While discretion is vested in trial courts for the relief of parties who, by reason of some excusable fault or neglect, have been deprived of the right given them, it should be exercised only where good and adequate cause is shown by the affidavits of persons having personal knowledge of the facts, and where there is a delay for which no substantial, adequate reason is shown, the party in default should not be relieved.” See Behnke v. Kroening, 174 Wis. 224, 182 N. W. 837; Colle v. Kewaunee, G. B. & W. R. Co. 149 Wis. 96, 135 N. W. 536.
If the question raised were properly presented by the record, we should have considerable difficulty in sustaining the order for the reasons pointed out in Ward v. Racine College, supra. The order was entered here nearly eleven months after notice of entry of judgment. Excuses of the character put forth in this case can be produced in any case and amount to little more than practical inconvenience. Consultation might have been had by attorneys. The question of appeal did not need to be determined. The only question was whether or not the bill of exceptions should be settled. The difficulty, however, is that the question is brought here on a motion to review pursuant to sec. 274.12, Stats. The material part of the section relevant here provides:
“In any case the respondent may have a review of the rulings of which he complains by serving upon the appellant any time before the case is set down for hearing in the supreme court a notice stating in what respect he asks for a review, reversal or modification of any part of the judgment or order appealed from.”
The order sought to be reviewed here is one made long after the judgment and can only be reviewed by appeal from that order and not by a cross-motion under the statute, as it
With respect to the first contention the plaintiff argues that a contract may not be varied by proof of universal custom where its terms are fixed and unambiguous. Francis H. Leggett & Co. v. West Salem C. Co. 155 Wis. 462, 144 N. W. 969; State ex rel. Donahue-Stratton Co. v. Grimm, 186 Wis. 154, 202 N. W. 162. Upon this branch of the case the court found that it was “the general custom among those engaged in the exportation and importation of seeds that the consignor shall ship by vessel sailing direct from the port of exportation to the port of importation,” in which event the seeds would have arrived not later than March 24th. This conclusion finds support in the evidence. To ship goods of a highly seasonal character upon a tramp steamer taking forty-four days for passage, when they might be shipped by direct steamer to arrive in from twelve to eighteen days, is a material circumstance. The custom certainly appears to be a reasonable one and does not vary the terms of the written contract, but merely supplements it by incorporating in it matters of general custom well understood by both parties and with reference to which it must be presumed the contract was made. Sauer Hide Co. v. Stein, 174 Wis. 185, 182 N. W. 847; Kosloski v. Kelly, 122 Wis. 665, 100 N. W. 1037; Iasigi v. Rosenstein, 141 N. Y. 414, 36 N. E. 509. The existence of the custom was supported by direct and positive testimony of two witnesses and is not denied, although the plaintiff testifies that he knew of no such custom.
With respect to the custom of dealers in seeds to send bulk samples along with shipping documents, the finding of the trial court in favor of the defendant’s contention seems to be well supported. In the 1918 shipment Notari & Com
Plaintiff’s argument in support of its contention that the evidence offered did not sustain the judgment upon the defendant’s counterclaim is based mainly on the proposition that the measure of damages was the difference between the market price of clover seed at Genoa or Bologna and the contract price, whereas the court’s finding that the seed would have been worth two and one-third cents per pound above the contract price is based upon the American market.
Plaintiff refers to sec. 121.67, Stats. 1925 (Uniform Sales Act), which is as follows:
“Where there is an available market for the goods in question, the measure of damages, in the absence of special circumstances showing proximate damages of a greater amount, is the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered.”
Under this section it is generally held that the place at which the market price is to be determined is the place of delivery. Allen v. Wolf River L. Co. 169 Wis. 253, 172 N. W. 158; U. L. A. (Sales) 251 and cases cited.
The argument here is that by the terms of the contract the place of delivery was Bologna or Genoa, Italy, and that there is no proof of the market price in either place.
It is further argued that the court erred in admitting in evidence certain memoranda made in the office of the defendant company relating to the price of prime clover seed on the Toledo market at or about the time when the shipment should have arrived in America if it had been forwarded in accordance with the custom of the trade. We shall not here discuss the difficult and vexed question of what are
The principal objection to the testimony was that it related to the American rather than the Italian market. That contention has already been considered and disposed of.
By the Court. — Judgment.affirmed.