Crawford v. Earl

Lyon, J. 1. It is clear that tbe signing of tbe order for the trees by the defendant, the delivery thereof to one of the plaintiffs, and its acceptance by the latter, constitutes a valid contract of purchase and sale between the parties on the terms and conditions expressed in such order. It is also clear that • the defendant failed in his attempt to countermand the order, and that the contract contained therein is binding upon him, unless it is competent for him to show that, prior to or at the time the order was thus given and accepted, the plaintiff Lamb agreed to go to the defendant’s house within four weeks, or thirty days after the contract was made, to give the latter the opportunity to countermand the order, and that Lamb failed to go there. The learned circuit judge held that evidence of such alleged contemporaneous parol agreement was insufficient to relieve the defendant from the obligations of the written' contract. This ruling is sustained by repeated decisions of this court. See Cooper v. Tappan, 4 Wis. (2d ed.), 376, and subsequent cases cited in note by Yilas & Bryant on p. 887. The cases in this court cited to sustain the opposite doctrine only hold that payment or failure of consideration, in whole or in part, of a note or other written contract, may be proved by parol, and that evidence of a cotemporaneous parol agreement as to the manner in which payment shall or may be made, is admissible. None of these cases hold that where, in a -written contract, a certain option is given to one of the parties, such party may show that when the contract was made it was verbally agreed that he should have another and more favorable option. We conclude, therefore, that the defendant is bound by the contract expressed in the order. 2. The next question is, whether evidence of the inferior quality of the trees delivered at Jefferson should have been received. We are inclined to think that the judge was right in holding the evidence inadmissible under the pleadings. At any rate, it seems to us that if the defendant intended to.rely upon the inferior quality of the trees as a defense, either he [317] sb'oulcl have pleaded that defense, or he should have refused to receive the trees for the reason that they were not merchantable,. He did neither, and the plaintiffs came to the trial without any notice or intimation that such defense would be attempted. Under these circumstances, it would be manifestly unjust to permit the defendant to spring such defense at the trial. Indeed, it is doubtful whether the defendant, after failing to make any objection to the quality of the tregs when tendered, but refusing to receive them for other reasons, can now be heard to object that the trees were not merchantable. "We do not determine this question, preferring to rest our decision on the grounds above indicated, but will suggest that the case may be analogous to a tender of money in discharge of a contract or other liability. Formerly, when debts were payable in coin, a tender of bank bills was always held good, unless refused because the tender was not made in coin. Is there any difference in the principle of the two cases ? 3. The remaining question is, whether the court gave the correct rule of damages. The plaintiffs did all that the contract required to vest the title to the trees in the defendant; and the cases in this and other courts cited by their counsel abundantly prove that the contract price of the trees is the true measure of damages. And so the jury were instructed. By the Court.— The judgment of the circuit court is affirmed. RYAN, C. J., took no part in the decision of this cause.