Hosmer v. McDonald

WiNslow, J. It seems necessary again to state the rule that this court will not reverse the findings of the trial court upon disputed questions of fact, except upon apparent satisfactory preponderance of the evidence against the findings, and this rule applies to a case where the testimony was taken by a referee and reported to the court, as well [58] as to a case tried by the court. Ely v. Daily, 40 Wis. 52. Vigorous attack is made by the appellant’s counsel upon a number of the findings of fact made by the circuit judge. We have patiently, and we believe thoroughly, examined the case, and we cannot say, after that examination, that there is a preponderance of evidence against any of the findings so attacked. The principal findings which are sought to ‘be reversed are those wherein it was found that no person was agreed upon as mutually satisfactory to both parties to make an estimate of the amount of lumber sold, and that no estimate under the terms of the contract was in fact made; and that it was agreed that the shipping scale or measurements, taken from time to time as the lumber was shipped, should be taken in determining the quantity of lumber shipped by the McDonalds, before the estimate provided by the contract should be made. It appears that on the 1st of July, 1882, the plaintiff’s agent, A. A. Hosmer, who transacted all her business, wrote and sent to the McDonalds a letter, in which he proposed that one McPhail should attend to the estimating of the lumber in the pile, and requested that if this would be satisfactory to them (the McDonalds) they tell McPhail to go to work at it at once. This, letter was not replied to. Hosmer also wrote McPhail at the same time, asking him to see McDonald, and find out if it would be satisfactory to have him (McPhail) estimate the lumber. McPhail testified that, he saw D. McDonald, and. that McDonald expressed himself as satisfied that McPhail should make the estimate. McDonald denied this conversation, and claims that the conversation with McPhail was simply to the effect that he (McPhail), acting for Mrs. Hosmer, and one McCam-mond, acting for the McDonalds, should count and keep track of the lumber as it was shipped. It further appears that McPhail and McCammond did [59] keep track of tbe lumber as skipped, and McPhail testifies that he, with the assistance of one Mclndoe, estimated the piles as fast as made, finishing his estimate in October, 1882. McPhail also testified that he estimated the amount of lumber sawed in 1881, and the total of his estimate for both years is more than 200,000 feet in excess of the gross amount of the shipping scale or measurements made from time to time as the lumber was shipped. It is this difference between the alleged estimate of McPhail and the shipping measurement which forms the largest item of plaintiff’s claim here. If the alleged estimate is to control, then plaintiff should have a much larger judgment, and whether the estimate is to control or not depends on whether McPhail was agreed on as a mutually satisfactory person to make the estimate. Appellant’s counsel makes a forcible argument to the effect that the McDonalds are estopped from denying that they assented to McPhail’s making the' estimate, because they did not reply to Ilosmer’s letter, proposing McPhail’s name, and Ilosmer thereby was led to believe, and did believe, that they had assented to his proposition, and rested easy in that belief. Doubtless a party may be estopped by silence when he ought to speak as well as by words, and, if these facts stood alone, we might feel compelled to adopt appellant’s view; but there are many other facts- in the case which bear more or less directly upon this question. The testimony is voluminous, and we cannot undertake here to recount it; but it is sufficient to say that there is considerable testimony relating to the subsequent conduct of the business, and correspondence and intercourse between the parties, which tends strongly to prove that neither party understood that a mutually satisfactory estimator had ever been agreed on. As the lumber was shipped, frequent statements were forwarded by the defendants to ilosmer of the amounts shipped according to the actual measurement; frequent [60] payments were made on the basis of these measurements. The whole business seems to have run along for months without reference to any estimate, and, as late as December, 1882, and February,- 1888, Hosmer writes letters to McDonald, urging that estimates be then made by McDonald in connection with McPhail to determine the amount of lumber sawed in 1882. This certainly seems to negative the idea of an already completed estimate by a mutually satisfactory person. Certain it is, also, that an arrangement was made between. McDonald and Hosmer that lumber might be shipped before the estimate provided in the contract was made, and that it should be measured as it was shipped, the only dispute being as to what person should do the measuring. Without attempting to go further in detail in the evidence, we think it clear that the findings of the circuit judge on these points, as well as with regard to the actual amount of lumber sold, are not against the weight of the evidence. As to the payments made to McPhail on the alleged verbal directions of Hosmer, the preponderance of the evidence is clearly in accordance with the findings of the circuit judge. As to the counterclaim of $107.98, allowed for loading lumber consigned to Freeze and Frambach, no serious contention seems to be made, and it is certainly supported by the evidence. A serious question is, however, raised by appellant as to the construction of one part of the written contract. The contract provides substantially for the purchase by defendants of all merchantable lumber manufactured at the mill of the Marathon Lumber Company for Hosmer, during the seasons of 1881 and 1882, except the amount previously delivered to P. W. Freeze, Green Bay Railroad Company, C. Starkweather, and Frambach. It appears that at least 58,000 feet of Hosmer’s lumber had been shipped from the yard in 1881 to Gile & Gillett, and appellant now claims that defendants must acco'unt for this lumber, because [61] it was not excepted from the general clause above set forth: Doubtless, if .there were no other, provisions of the contract bearing on the question, appellant’s position would be impregnable. But there are other clauses in the contract which bear on the question, and it is elementary that the construction must be a construction of the whole contract, and not of disjointed parts taken separately. The contract provides that the plaintiff will actually deliver the lumber embraced in it, and further that the amount of lumber embraced by the contract shall be determined by estimating the same in piles in the yard of the company. There is no pretense that the G-ile & Gillett lumber ever was delivered to the defendants, and it is manifest that it could not be actually delivered, nor could it be estimated in piles in the yard. Now, in this manifestly contradictory state of the contract, it might with much force be argued that, in the absence of all testimony, a proper construction of the whole contract should be that it was only the lumber actually delivered and piled in the yard that was sold; but, however this may be (and we do not decide the question), it is plain that evidence of the practical construction given to the contract by the parties in their subsequent dealings under it, is properly to be considered and is of much weight in determining the proper construction. The evidence indicates clearly, to our minds, that the parties, in their subsequent dealings, did not consider that the Gile & Gillett lumber was included in the sale, and such was the conclusion of the circuit court. This substantially disposes of the questions raised bn this appeal. By the Court.— The judgment of the circuit court is affirmed.