| Wis. | May 27, 1919
We are of the opinion that this judgment should be affirmed upon one of the conclusions reached by the trial court, namely, that the contract in this case is not within the purview of sec. 1670n, Stats.
Whether this statute be considered a penal or a remedial one, upon which point we express no opinion, in either event it would' from its nature require a strict construction when. made the basis of a claim for such damages as is made by the plajntiff herein, and his right to such a remedy as he here asks should be clear.
Upon the stipulation and record herein we must neces
Upon the face of this contract we are constrained to hold that it is not such a crop purchase as is the subject matter of the law under consideration. It appears to be a contract for certain definite grade or qualities out of an entire crop. This is evident from the fact that the contract provides that if, in that which shall be subsequently tendered or offered for delivery by the seller to the purchaser, there shall be included damaged tobacco, the amount of damage is to be decided upon by mutual agreement. No specific price is fixed by this contract for such damaged tobacco and we are therefore bound to assume that the parties recognized that there was something else to an entire crop of tobacco than the two grades' or qualities upon which the definite prices were fixed and agreed to be paid. That parties have the right to bargain for the purchase and sale of parts of an entire crop instead of the whole cannot well be questioned, and if they content themselves with such a contract the court cannot well make it anything else.
They appear to have agreed to sell and purchase certain definitely described separate, and apparently independent, grades or qualities of tobacco, each at a specified and different price, out of a certain crop raised by the seller on his four acres. The term “crop” is used in the contract.. It is, however, a general term and must, so far as this contract is concerned, be controlled by the definitely described grades at specified prices.
The contract further expressly provides for its cancellation in case the parties cannot agree as to the amount of damage that shall arise by such subsequently .ascertained condition. Ordinarily parties certainly have the same right to agree that upon certain conditions subsequently arising their
This affirmance of the judgment of the court below is solely upon the grounds herein indicated, and is expressly without any determination or intimation upon the other question raised and suggested in this case and also passed upon in the court below, as to whether or not this sec. 167On can be upheld as a lawful exercise of legislative power.
By the Court. — Judgment affirmed.