Lindon v. Eldred

OetoN, J. In our view of the evidence in this case, it is unnecessary to inquire whether the contract of sale was so far an executed one that the property in the pork passed to the defendant at the time, so that the part of it yet remaining in the possession of the plaintiff could be sold at any time to [314] pay the balance of the purchase money, or remained so far an executory one that the rule recognized in Pickering v. Bardwell, 21 Wis., 565, requiring such sale1 to be made within a reasonable time, to entitle the plaintiff to call upon the defendant to make up the loss, is alone applicable. Nor is it necessary to determine tlie question, so ably discussed by the learned counsel, by the reason and weight of conflicting authorities, whether the rule of diligence is not the true rule in either case. The evidence appears to be clear and conclusive that the plaintiff did proceed with due diligence, and within a reasonable time, to sell the remaining part of the property at public auction, after the actual default of the defendant. The six months limited in the contract for the last delivery and payment expired the first day of October, 1876. Thirty barrels of the pork were delivered and received after that time, and the defendant requested by letter the delivery of still more, as late as the ninth day of December, which the plaintiff refused, on the sole ground that some part of that already delivered bad not been paid for, and the plaintiff offered to ship more upon such payment, as late as the 22d day of December. Notice was given by the plaintiff to the defendant, on tlie 19th day of December,- to order the shipment of the residue of the pork and make payment 'within ten days. Notice of the public sale was published on the 15th day of January, 1877, and the sale took place on the 20th. The time fixed in the contract was treated by both parties as non-essential, and their conduct clearly waived the strict performance in this respect, and postponed the final default of the defendant until the 29th day of December. Durand et al. v. Sage, 11 Wis., 151; Fisk v. Tank et al., 12 Wis., 276. After this time the sale was made with due diligence and within a reasonable time. There is no special finding of this fact of diligence, but from the legal conclusions and judgment of the court in favor of the plaintiff, such a finding must be pre315 snmed, especially in a case where all tbe undisputed facts show such diligence. The only purpose of this public sale of the residue of the property, in which the defendant had any interest, was to fix the true market value of the property at that time. The presence and bidding of the defendant at the sale, and his purchasing the residue of the pork at a higher price than that offered by others, could not have made the market price, even if higher, more favorable to himself as one of the contracting parties. The higher his bid, the more he would have to pay for the property purchased at. the sale, and the less would be the amount remaining to be paid as the difference between the contract price and the market value, fixed by his own bid; so that he could have gained nothing by his being present and bidding at the sale, except a profit upon his purchase, and this any other purchaser would have realized as well. ITis only Interest as a bidder was that of any other person, and he had the same notice of the sale, and no'cause of complaint because he did not have a 'personal notice. And so it may be said of the other question discussed on th.e argument, whether the sale of thirteen barrels of pork, nominally made to one Sleight, was not made in the interest and for the benefit of the plaintiff. The only interest the defendant has in this question is as it affected the true market value of these thirteen barrels at the time; and it does not appear that they could have been sold for a higher price to any other bidder. This is certainly not a very difficult case, upon the facts, when divested of questions not material to its decision; and we can find no error in the record. By the Court. — The judgment of the circuit court is affirmed, with costs.