Weiseger v. Wheeler, 14 Wis. 101

Weiseger v. Wheeler

14 Wis. 101 | Wis. | 1861

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Djxok, C. J.

The respondents are in no position to take advantage of an original want of power on the part of Waller & Co. to execute the agreement as agents of the appellants, if such want of power were shown. At the time of its execution Waller & Co. guarantied its performance by the appellants as their principals, and upon that guaranty the respondents must be presumed to have acted. The appellants never repudiated, but on the contrary ratified and confirmed it. If there were no other act, the commencement of this action under their authority and direction ought to be regarded as sufficient for that purpose.

It is obvious to us upon the face of the agreement, and without the explanatory evidence given and offered by the appellants, that the seven days written notice to be given by the respondent Wheeler, of his intention to deliver the pork, was to precede the appointment by the appellants of the warehouse at which they would receive and pay for it. The privilege of delivering it at a warehouse in either of the cities of Milwaukee or Chicago, was evidently intended for *105Wheeler's benefit, and designed to give him the choice of the place of delivery, leaving it for the appellants, if they |to designate the particular warehouse. The grammatical ¡construction of the sentence indicates this .intention: “ Said ijrork to be delivered to the said parties of the second part [the appellants] duringmonths of next December, January or February, at the seller's option, and at any warehouse in the city of Milwaukee, or in the city of Chicago, Illinois, which the parties of the second part may appoint.” A fair construction of this language warrants the conclusion that it was not the design to limit Wheeler's option to the matter of time, but that he might also select the place, being restricted as to the particular point of delivery within the city which he might choose, to some warehouse' which the appellants should have the right to appoint. It is true that the parties might have used language which would have expressed their idéas more clearly and explicitly, and that under other circumstances that used might sustain a different construction. But looking to the whole agreement and .the position of the parties, we think that this was clearly their intention, and when that is ascertained it becomes a governing principle in the interpretation of contracts. Particular words and sentences must be so construed as, if possible, to sub-serve the intention of the parties as shown by the whole instrument. If we were to say that the power of appointment referred to the city and not to the warehouse, the latter would be left altogether uncertain, and to be selected by Wheeler without previous notice to the appellants. This would defeat one plain object of the parties, which was to have some previously ascertained warehouse, within one city or the other, at which they should meet to transact the business and perform the stipulations of the agreement. It would likewise violate their intentions in another and more important particular. They contemplated that the pork would be packed in Milwaukee or Chicago, or a part in one place and a part in the other. The agreement expressly provided that it should be so packed. From the nature and quantity of the article and the season and mode of delivery, it is clear that they intended the place of packing should be the place *106of delivery. Certainly Wheeler never supposed that if lie packed and gave notice of his readiness and intention to deliver the pork at Milwaukee, he was bound to transport it to Chicago upon the appellants’ designating that as the place at which they would receive and pay for it. Uor could he have believed himself liable to deliver at Milwaukee, pork packed in Chicago, upon a like designation. If such demand had been made, we think it would have been most strongly resisted by him; and rightly too, for such never was his intention nor that of the appellants. The language of the agreement would not have authorized it.

If the right of appointment be held to include both the city and the warehouse, the objection still continues. Wheeler would have been obliged, upon receiving notice to that effect, to have transported the pork from one city to the other, contrary to the manifest understanding of the parties.

It follows, therefore, that the appellants could not have been in default for not appointing a warehouse, or for not being present to receive and pay for the pork, until Wheeler had first designated the place and notified them of his intention to deliver, which it was his duty to do within the time required by the agreement.

Judgment reversed, and a new trial ordered.