Walsh v. Myers, 92 Wis. 397

Walsh v. Myers

92 Wis. 397 | Wis. | 1896

JSTewman, J.

It is urged that the instrument of August 20, 1889, is invalid as a contract, because it does not fix the price to be paid for the cans which were to be manufactured under it, and so was not a completed contract, but only in•choate, ’ leaving most essential terms to be arranged by future agreement. If this is the real effect of the instrument it cannot be deemed a completed contract, nor in force, ■so as to bind the defendants to receive cans from the plaintiff. But it appears that there had been a previous agreement in writing fixing the rate to be paid for such cans as ¿this instrument provides for. The evidence shows that, from the date of that contract to August 20, 1889, the date -of this last contract, like cans were furnished at the same .prices, and were being then so furnished. It may well be deemed that the words of the contract, “You will therefore ■enter our order, and continue to furnish us, as heretofore, our entire wants for cans,” contemplate the price as well as the size and quality of the cans. It is certainly competent that the court shall be informed of the situation of the parties, so that it can view the agreement from their situation and standpoint, and ascertain from that vantage point what the parties intended by the words used (Nilson v. Morse, 52 Wis. 240); and then such a construction is to be given, if possible, as shall sustain, rather- than defeat, the ■contract (2 Parsons, Oont. (8th ed.), 621 (*503-4); Redman v. Hartford F. Ins. Co. 47 Wis. 89). And the fact that cans were furnished and paid for, without any new agree-, ment fixing the price, down to the time of the fire, May 8, 1891, is éntitled to weight as a practical construction by the parties themselves of this provision of the contract. Nilson v. Morse, supra; Janesville Cotton Mills v. Ford, 82 Wis. *402416, 430. So it is considered that the words “as heretofore ” imply as well the price as the size of the cans to be-manufactured.

It is urged that the contract is void for want of mutuality. But this can hardly be; for, certainly, there are mutual promises which are good consideration for each other. The-defendants agreed to furnish the material, and to receive-not less than 10,000 cans per day, and the plaintiff agreed to furnish them “ as heretofore.” In form, he “ accepted ” the proposition made to him by the defendants.

The contract, by its terms, was “to continue in force as-long as the Eagle Lye Works use lye cans.” The notification to the plaintiff, by the defendants, at the time of the-fire, especially when considered in connection with the contract previously made with Rosendale; Paine & Go., whereby they had bound themselves to receive no cans from any persons other than Rosendale, Paine & Go., was a complete-excuse to the plaintiff from further performance of the contract upon his part. He might, at his option, consider the-contract as rescinded (School Dist. v. Hayne, 46 Wis. 511); or he might treat the contract as broken, and bring an action at once for the breach. The plaintiff elected to treat this; as a breach, leaving the contract still in force. This keeps the contract alive for the benefit of both parties, and made it necessary for the plaintiff to be in readiness to perform his part, if performance was demanded by the defendants. Ho such demand seems to have been made. There could be-no breach or default on the part of the plaintiff, at this, stage, unless he failed to perform on request. In the absence of such request and failure, it is unimportant whether-he was always ready to perform. Under the circumstances,, he was not bound to incur useless expense. 2 Parsons, Cont.. (8th ed.), 781 (*667), note 1; 3 Am. & Eng. Ency. of Law,. 904, 906; Cameron v. White, 74 Wis. 425; Corbett v. Anderson, 85 Wis. 218; Tufts v. Weinfeld, 88 Wis. 647; Windmuller v. Pope, 107 N. Y. 674.

*403No legal justification appears for the defendants’ breach of the contract. It is clear that they no longer wished or intended to permit the plaintiff to manufacture cans for them. They did not afterwards request or furnish material for this manufacture, and had, previously, made an exclusive contract with others to make the cans. So the plaintiff is entitled to recover his damages. These are the profits which he would have realized if he had been permitted to make 10,000 cans per day during the life of his contract. In other words, he is entitled to recover the difference between the contract price and the cost of manufacture. Cameron v. White, 74 Wis. 425; Corbett v. Anderson, 85 Wis. 218; Allen v. Murray, 87 Wis. 41; Tufts v. Weinfeld, 88 Wis. 647. The trial court assessed the damages on this rule of profits. It estimated them on a conservative basis. Instead of estimating for cans at the rate of 10,000 per day, it estimated on the number of cans which were shown to have been actually used by the defendants, which was a considerably less number. It considered that the contract terminated when, by the death 'of one of its members, the firm was dissolved. Then, if the damages were estimated on a smaller number of cans and for a shorter period of time, that is favorable to the defendants and not error against them. • If the action had been tried soon after the breach, it would have been permissible to estimate damages for the full number of cans agreed to be received, for at least the time from the breach, May 8, 1891, until June 23, 1894, the time of the dissolution of the partnership, which was a little more than three years. Treat v. Hiles, 81 Wis. 280. But it was possible, by a later trial, to ascertain more nearly the actual damages. It does not appear that the damages assessed are in excess of the damages properly recoverable.

By the Court.— The judgment of the superior court of Milwaukee county is affirmed.