Gehl v. Milwaukee Produce Co.

Dodge, J. By the second question of the special verdict, as limited by the instructions, the court submitted to the-jury two questions of fact: first, Did the plaintiffs, on March 1, notify defendant of their willingness to perform the contract? and, second, "Were the postponements thereafter had at the instance of the defendant or of the plaintiffs ? Such postponements were confessedly assented to by both parties. These were the only issues submitted bearing upon the conclusion whether or not defendant was liable. In this it is obvious the trial court fell into serious error. The true issue? was whether the defendant refused to accept the merchandise upon an offer by plaintiffs to deliver in accordance with the contract, and at a time when, by virtue of the admitted postponements, they still had a right to deliver. Confessedly, no breach occurred on March 1, whether plaintiffs did or did not offer at that time, for the defendant did not refuse, but both parties agreed upon a later time for delivery ; therefore the question whether offer was made at that, time was hardly material, certainly not decisive. Again, it-being conceded that the postponements were agreed to by both parties, the question who requested them was wholly immaterial. They being indefinite, either party had the-right to terminate them, and demand performance, at any time upon reasonable notice. It is quite obvious from the situation of the parties and location of their places of business that a single day — probably a few hours — -would be ample time for making delivery after demand. In the light of the undisputed conditions, the two facts passed on by the verdict are wholly inconclusive. Because plaintiffs were willing to perform on March 1, and agreed to postponement to a future time, it by no means follows that they ever afterward offered delivery, or that defendant ever refused-such offer. The situation strongly indicated, if not conclusively established, may be stated as follows: After nearly two weeks of' [579] delay, the defendant, on March 13 or 14, demanded performance by delivery at its store. The plaintiff Matt Gehl denied his duty to deliver at that place, and insisted on defendant’s duty to accept the seed at the warehouse. After insistence on their respective demands, plaintiff held the matter under consideration, and on the next day attempted a coercive and final tender in accordance with his contention as to the rights of the parties, which defendant refused to accept. We think it plain that both parties considered their rights fixed thereby, and that no understanding for any further extension of time existed. Both parties knew that but a few days remained of the season for sale of clover seed, and that after those few days it would be of no use to defendant for another year. It is also obvious that the attempted tender on March 26 was not in contemplation by plaintiffs, but was due to suggestion of counsel, who, when consulted as to their rights, found defects in the tender of March 15. We cannot escape the conclusion that the interview of the 13th or 14th of March, which is undisputed, constituted a final offer of performance by each according to his theory of the terms of the contract as to the place of delivery and a categorical refusal by the other, so that, if plaintiff’s contention thereon is correct, he might have brought his action the next day. Thus the only remaining question on the trial was as to the place of delivery under a contract silent thereon, in the light of the evidence of a uniform custom among seed dealers in Milwaukee, and of plaintiffs’ knowledge or ignorance thereof. The court refused to submit to the jury the question of the existence of-the custom claimed by defendant. Such refusal could be justified only upon the ground that such custom was established beyond dispute, for there was at least abundant affirmative evidence. There was also evidence tending to prove plaintiffs’ knowledge of such custom, which was proved to be general and uniform among [580] seed dealers in Milwaukee. The plaintiffs, while not exclusively or even predominantly, dealers in seed, were shown to have had dealing therein in Milwaukee from about 1891. They did deliver, without question, a portion of the property included in this contract, in exact accordance with the custom proved, and when they sold the white clover seed in question to another Milwaukee dealer they, again without question, made delivery to him in accordance with that custom. This conduct might well have justified the jury in discrediting plaintiffs’ own declarations that they did not know of any custom fixing the place of delivery. A uniform trade custom is readily accepted by courts to define what is ambiguous or is left indeterminate in a contract, where both parties have knowledge of the custom, or are so situated that such knowledge may be presumed, for the reason that the majority of such transaction's are had in view of the custom, and the agreement on which the minds of the parties actually met will thereby be carried into effect. Jones, Construction of Cont. §§ 100, 103. Where the custom is proved to be known to both, it may even add terms to the contract. Scott v. Whitney, 41 Wis. 504; Hewitt v. John Week L. Co. 77 Wis. 548. Where the custom is general, it will be presumed to have entered into the contract, and one may be bound thereby although ignorant, unless the other party be shown to have knowledge of his ignorance. 1 Duer, Ins. 276; Jones, Construction of Cont. §§ 103, 117; Hewitt v. John Week L. Co., supra; Shores L. Co. v. Stitt, 102 Wis. 450; Jones v. Hoey, 128 Mass. 585; Mooney v. Howard Ins. Co. 138 Mass. 375; Mand v. Trail, 92 Ind. 521. The custom proved in this case was general, for it was uniform in the seed trade in the city of Milwaukee (Hewitt v. John Week L. Co.), and unless it was shown that both parties intended to exclude it, or that the plaintiff was ignorant thereof to the knowledge of the defendant, should [581] bave controlled as to tbe manner and place of delivery. Such facts should have been submitted to the jury unless indeed the court resolved them in favor of the defendant. Failure to so submit them was error, and, without a verdict thereon, the judgment in favor of plaintiff is without support. In the view we have expressed as to the immateriality of the issues submitted to the jury, a large number of the exceptions taken and errors assigned become immaterial also,, and need not be discussed. Some, however, raise questions, which may present themselves on another trial. In submitting the sixth question, whether plaintiffs exercised due diligence in selling the seed after refusal by defendant, the court wholly refrained from instructing the jury as to what would constitute due diligence. There was evidence of market price, and actual offers higher than the price at which sale was actually made. The court’s attention was called to both of these considerations by requests to instruct and by requests to submit questions. While it may not be necessary to decide whether either of these requests was in sufficiently perfect form to constitute its refusal reversible error, it certainly was the duty of the trial court to instruct the jury as to the standard of “due diligence,” and to inform them that unreasonable rejection of higher offers, or neglect to avail themselves of an existing market price, was not consistent with such standard. In the light of the situation disclosed by the evidence, he should also have instructed them that plaintiffs’ duty of diligence commenced with the refusal of their tender on March 15. The instruction given in application to the eighth question of the special verdict — that relating to amount of damages — was clearly erroneous: first, because the measure prescribed was the “difference between what they sold the seed for and what they were to have under the contract,” while their right was the difference between what they could have ob [582] tained by due diligence after defendant’s refusal and the contract price; secondly, because tbe instruction authorized “ a reasonable commission for selling.” Plaintiffs testified that they paid no commission and incurred no expense in making the sale, and that the commission claimed in the complaint was for their own services. This was no proper element of damages. By the Court. — ■ Judgment reversed, and cause remanded for a new trial.