Woodall v. Democrat Printing Co.

Fowler, J. .The complaint alleges nine causes of action each to recover $250 damages for one of several successive alleged breaches by defendant of a contract made by it with the plaintiff for a single use of a mailing list furnished by plaintiff to defendant for mailing out to persons on the list a booklet printed by defendant containing advertising matter. One Louis Gaiter got up the booklet which he called “War Plant Bulletin.” It was designed to be mailed by him at intervals to persons engaged in metal-working industries who might desire the articles described in the Bulletin. Gaiter applied to the plaintiff, who compiled and furnished mailing lists, to furnish him with a list of names of such persons with their addresses to whom the Bulletin might be mailed for advertising purposes. While some correspondence preceded it, the first contact between Gaiter and Woodall relating to furnishing a list of names was a telephone conversation in which Gaiter told Woodall that what he wanted was to get 25,000 names, four sets of labels, one original and three sets of carbons. Woodall told him that would constitute an outright purchase. After this talk *350 Woodall sent a telegram offering to supply 25,000 names typed on gummed labels and three carbons at a total cost of $1,250. In reply to the telegram. Gaiter wrote a letter in effect saying that the price was too high and asking him to refigure the cost, saying that if the price could be put between $500 and $600 he, Gaiter, thought he could send an order. This letter closed with the statement that “we will never resell a copy of your list.” Woodall sent a long letter in reply, that resulted in another telephone talk between Woodall and Gaiter. Woodall asked Gaiter how he proposed to pay and how he was to assure "that the names would not be pirated.” • Gaiter replied that the Democrat Printing Company and the head of that company, Mr. Brandenburg, were backing the enterprise and said they would issue the orders to plaintiff and pay the bills. Woodall told Gaiter that if the Democrat Printing Company and Brandenburg would issue the order and would give “absolute assurance” in writing that the list would not be pirated dr used for any other purpose than one mailing he, Woodall, would “go ahead.” Following this talk Woodall received a letter from the defendant which is quite specific and embodies the contract for the first gummed list and copies. This letter included this provision: “This is our assurance that we will not sell or copy these labels, nor use them for any other purpose than mailing the first issue of War Plant Bulletins.” It fixed the total number of labels at 25,000 and th'e price at $10 per thousand “or $250 for this order.” Woodall by letter to Brandenburg objected to one provision of Brandenburg’s order, but after talking with Gaiter, Woodall sent a letter to Brandenburg saying Gaiter had straightened out the matter to which he, Wood-all, had objected and Woodall was proceeding with the work of furnishing the list. Following this the first batch of labels was sent to the defendant and only proper use of it was made by the defendant, and the $250 cost was paid by defendant direct to Woodall. *351 At the conclusion of this contract not only the plaintiff and Gaiter, but the defendant, contemplated the furnishing of lists by the plaintiff for subsequent mailings of the Bulletin. This is evidenced by 'the following statement in a letter by Brandenburg to Woodall concluding: "We want to work with you in a mutually helpful way and to look forward to a long and pleasant association.” The negotiations between the plaintiff and defendant covering the second list of 25,000 names began with a letter from Gaiter to Woodall saying “it appears we’ll need an addressing [list] by November 7 — same specifications and quantity as was specified previously.” The “same specifications” obviously refers to those in the contract covering the first list. This letter further said: “As previously, you will bill the Democrat Printing Company and ship the completed job to them. . . . A copy of this letter is being sent to Madison. Should you wish to have a confirmation of this order from the Democrat Printing Company, please wire them so no time will be lost in your getting under way to deliver the job on time.” In compliance with the statement regarding confirmation, Wood-all sent a telegram to Brandenburg saying: “Please air-mail confirmation of order for readdressing list and include same assurance as last time that names will not be copied.” To this the defendant answered by letter: “Please furnish by post 25M addressed labels per detailed order of Mr. Gaiter. This is merely confirmation and guarantee of payment as I don’t know details of your deal [with Gaiter] — presumably same in all respects as last order.” Pursuant thereto 25,000 names were sent and billed to defendant and paid for by defendant direct to plaintiff. This completed the contract between the parties respecting the second 25,000 list. By the contract so made the plaintiff was to deliver to defendant a gummed list containing names of persons with proper addresses. The defendant was to cut the names with accom *352 panying addresses from the list and attach them to the publication before mailing. The use made by the defendant was by the contract restricted solely to such single use. Pursuant to this contract the plaintiff sent to defendant a second gummed list. After receiving the second gummed list the defendant let Gaiter take it with him to Chicago and keep it there ten days, ostensibly to deduct from it names of persons from whom the publication first sent had been returned to him as not delivered. No subsequent lists were ordered by defendant from the plaintiff. , All subsequent mailings by the defendant were made from lists furnished by Gaiter, practically all as the trial court found copied by Gaiter from the second gummed list, which defendant had let Gaiter take to delete names as above stated. The first cause of action and each subsequent cause of. action for $250 was based on the third and subsequent mailings of the Bulletin by defendant from a list sent defendant by Gaiter. The court found that the number of mailings made by the defendant subsequent to the second was nineteen; held that the third mailing by defendant and each subsequent mailing constituted a breach of the contract between plaintiff and defendant made for furnishing the second gummed list; held that this third mailing constituted a conversion by the defendant of the second gummed list; that the list was worth $1,250 and that plaintiff was entitled to recover that sum less the cost to plaintiff of making and sending the list to defendant; and held that the defendant was entitled to apply the $250 paid by it to plaintiff for the second gummed list and so applied it and gave plaintiff judgment for $1,000' less such cost and interest on the differences as damages. The plaintiff contends that upon the court’s theory of breach of contract and conversion of the list the $250 paid for the second list was improperly applied and that the true measure of damages was $250 for each of the successive breaches of the contract less the expense the plaintiff would have been put to *353 had he furnished a gummed list to the defendant to be used in mailing out the subsequent Bulletins. The defendant contends, under a motion to review, that the trial court erred in holding the defendant’s use of the second list furnished it by the plaintiff violated his contract and that-the complaint should have been dismissed; but that if the court was right in holding that the defendant violated his contract the measure of damages applied by the court was correct and the judgment should be affirmed. The questions for determination thus are: Did the trial court correctly determine that, (1) the use of the second list furnished by plaintiff to defendant was so restricted by the contract between the parties to it as was the first ? If so, (2) Did letting Gaiter take the second gummed list for the purpose of correction constitute a breach of the second contract? and if so, (3) Did letting Gaiter take the list in view of his copying it and furnishing from the copy the subsequent mailing-lists to defendant impose liability on the defendant for its value ? -and if so (4) Did the court properly allow the $250 credit fo.r payment by defendant to plaintiff for the second list? or (5) as contrato (2), (3), and (4) above, Is plaintiff entitled to damages for each of the successive mailings of the publication after the first ? The trial court concluded that the contract for the second list was in all respects like the first and that the use to be made of it by the defendant was limited to a single mailing. These conclusions were based on the judge’s determination of the sense in which certain words, particularly “we” and “use,” were used in the defendant’s letter to the plaintiff relating to-the first contract. While the construction of a contract, when it is not ambiguous, is a matter of law for the court to determine, when there is ambiguity the sense in which words therein are used is a question of fact. Becker v. Holm, 89 Wis. 86, 61 N. W. 307; French v. Fidelity & Casualty Co. 135 Wis. 259, *354 115 N. W. 869, 17 L. R. A. (N .S.) 1011; Kipp v. Laun, 146 Wis. 591, 604, 131 N. W. 418. Brandenburg’s letter respecting this contract was in reply to Gaiter’s statement to Woodall that Brandenburg would “give absolute assurance in writing that the list would not be pirated or used for any other purpose than one mailing.” The language in Brandenburg’s letter, and in the contract that letter evidences, was Brandenburg’s own, and if subject to two meanings is to be construed in favor of Woodall if subject to the meaning that Woodall understood it to mean. Woodall reasonably considered that the words “we” and “use” meant that neither the defendant nor Gaiter would copy the list or use it for anything but the single mailing. Moreover the second order was sent by Gaiter by letter at Brandenburg’s suggestion. It contains the clause “it appears we’ll need an addressing list,” etc. The “we” in “we’ll need” manifestly covers both Gaiter and the defendant. If it referred to Gaiter only the phrase would have been “I’ll need.” A copy of this letter was sent Brandenburg so he knew “we” in that letter included Gaiter, and this adds support to the inference that the “we” in Brandenburg’s letter to Woodall closing the first contract included him. Even if the word “we” be taken as referring to Brandenburg and the defendant company or the defendant company in a collective sens.e, it still leaves the word “use” subject to the meaning that it would not be loaned, or let go out of the defendant’s own possession. A copy of Gaiter’s letter to Woodall ordering the second list was sent by Woodall to Brandenburg. Respondent contends that its letter relating to the second order is merely a guaranty of payment. This construction is not tenable.' It is both a confirmation and a guaranty of payment. Confirmation necessarily implies confirmation of the first contract and is in response of the letter of Woodall to Brandenburg which says “Please air-mail confirmation of order . . . and include same assurance as last time that names will not be copied.” The letter of Brandenburg is therefore an admission that the first contract guaranteed that the names *355 would not be copied and a guaranty that the second list would not be copied by the defendant or Gaiter. Moreover, the meaning of “assurance” in the letter of Brandenburg, relating to the first contract, was a question of fact under the cases above cited. Under the construction of the contract covering the second list made by the trial court, with which we agree, it is plain that letting Gaiter take the second list was a breach of the second contract, and the only question left for determination is whether the trial court applied the correct measure of damages. We think it did. The contention of defendant that it did perhaps renders it unnecessary to consider the merits of that question. However, so considering it, we think that the damages cannot exceed the value put by the plaintiff on what he desig-, nated the value on “an outright sale” of the list. The defendant’s liability for the copying of the list could not exceed Gaiter’s, and Gaiter’s liability for pirating the list could not be greater than it would have been had he purchased it. Also as to the application of the $250 the defendant paid for the second list, having paid $250 for a restricted use of the list, on becoming liable for an unlimited use of it the defendant might rightly apply the amount on the value of an unrestricted use. It follows that the judgment should be affirmed. By the Court. — The judgment of the circuit court is affirmed.