Wright v. C. S. Graves Land Co.

Bardeen, J. The contract in question does not, in terms, specify how long it shall continue in force. The court held that it was at least for a year, and in this he was manifestly right. The two papers introduced in evidence (that is, the contract for service and the land contract) must be construed [272] as one instrument, for the purpose of determining the character of the transaction and the intention of the parties. Herbst v. Lowe, 65 Wis. 316. The contract of service required the plaintiffs to purchase at least eighty acres of land, upon which they were to make monthly payments in services, at the rate of $300 per annum. The land contract fixes the purchase price at $600, and recites that it was to be paid “ according to the terms of a certain contract made by the parties, bearing even date herewith.” The plaintiffs thereby became bound for a term of at least two years’ service, and the defendant was as much bound to accept payment in that manner. Under the circumstances, it seems labor lost to argue that the contract could be terminated at will. The chief contest on the trial arose over the proper construction to be given to the clause of the contract quoted in the statement of facts, as to the purpose of plaintiffs’ employment. The court was first of opinion that it was so ambiguous that reference should be had to the conversations of the parties at the time the contract was drawn, to ascertain its meaning. He therefore permitted several witnesses to be examined on that subject. Later, the court seemed to have altered his opinion, and notified the parties that such testimony should be stricken out; mentioning the names of several witnesses, but not including the name of Mrs. Wright, who had testified at length on this subject. The defendant claims this to have been error. Had it not been cured by express directions in the charge to the jury, the defendant’s contention would have had substantial ground to rest upon. In his charge the court said: “ But you may not consider what the parties said at the time of making the contract as to what construction they intended should be placed upon the words used, or their declarations on that subject, or their understanding of what the contract was. Hence what was said by them in reference to the work which such plaintiffs were to perform is not admissible as evidence, and should not [273] be considered by yon.” Here was a plain and definite direction to the jury to disregard the objectionable testimony, and it is not easy to perceive how the defendant has been injured in the premises. The court, however, allowed the situation and surroundings of the parties to be shown in aid of an interpretation of the language used; and he permitted the jury to determine the construction to be given to the words “ or any other labor,” as used in the clause noted. As we view the case, this was error, but error against the plaintiffs, and which cannot be available to defendant. It seems to us perfectly evident that plaintiffs were hired not only to keep and run an hotel, but “ to superintend ” the clearing of land, building of roads, constructing of buildings, and also to superintend any other labor the defendant might have done there. Any other construction of the contract would seem to us inconsistent with the general purposes and objects of the transaction. But the parties had given the contract a practical construction by their acts. No claim seems to have been made that plaintiff should do any work other than superintending until it became evident that the scheme to build the city was not developing as expected. But there is another reason why this becomes unimportant: On August 31st defendant notified plaintiff II. V. Wright that he had been superseded as superintendent, and he was directed to govern himself accordingly. There is no claim of a termination of the contract by defendant at that time. On September 1st the new superintendent demanded that Wright should permit his team to go out to work. This Wright refused to do. Thereupon defendant served written notice that the refusal to furnish the team was a violation of his contract, and he was notified to immediately vacate the premises; and on September 4th another written notice was served, and the right to terminate the contract was based upon the notice of September 1st. There is no pretense in these notices that [274] defendant claimed a right to terminate the contract on any other ground. A party who proposes to insist upon a technical forfeiture of a contract upon certain grounds specified, is usually held to the case he has made. If he assumes to claim a forfeiture upon grounds specifically stated, he is deemed to have waived other breaches. This principle is recognized in Badger v. Glens Falls Ins. Co. 49 Wis. 389; and Bast v. Byrne, 51 Wis. 531, and seems entirely consistent with every principle of justice and equity. So, defendant having sought to terminate the contract because plaintiff refused to furnish a team to work on the land, the fact of whether plaintiff refused to do certain manual labor becomes immaterial, and its submission to the jury really put the defendant in a better position than it was entitled to. The court sufficiently adopted the jury’s conclusion by refusing to set’aside the verdict and grant a new trial. Central L. & E. Co. v. Moore, 75 Wis. 170. But, if our conclusion were otherwise, we should hesitate to disturb the verdict, because of the failure of the proof to disclose what kind of work it was that plaintiff refused to perform. Wright admits that Mr. Phillips asked him to do things that he refused to do. Mr. Phillips says: “When I would ask him to work, it was the same old story, — that he did not have to work; that he was superintendent, and did not have to work.” To justify a termination of the contract, there should be at least a reasonable showing of a demand and refusal to do some kind of work not inconsistent with the performance of other duties he had contracted to perform. No such showing is made in the evidence. Some exceptions were taken to the argument of counsel at the trial. While not strictly within the rule of proper argument, it is not perceived how the defendant suffered injury sufficient to warrant a reversal of the judgment. By the Gov/rt.— The judgment of the circuit court is affirmed.