McCall Co. v. Icks

Maeshall, J. The defendants’ appeal is mainly on the ground that the transactions between the parties did not constitute a binding contract for Want of mutuality and consideration to support the promise of the defendants, the theory being that plaintiff did not accept defendants’ order. On that it is considered that the trial court reached the right conclusion. The order expressly stated that upon its acceptance it was to constitute a contract, binding between the parties for two years from its date, and thereafter until the expiration of sixty days’ notice given by either party in writing. It was first signed bj^ the defendants as the parties to be bound as purchasers. Following their signatures is language to the effect that upon certain specified conditions the vendors will save the purchasers harmless from loss by reason of handling the bazaar patterns. That is followed by language acknowledging receipt of one dollar upon the contract, to be applied on the first bill of goods, and then follows the signature of the plaintiff by its duly authorized — 236 — agent. The offer to purchase goods, the agreement to save the purchasers harmless from loss on the patterns, and the receipt of one dollar on the contract, are all parts of one entire written agreement. The receipt of one dollar and the agreement to save the purchasers harmless from loss in handling the patterns are inconsistent, as it seems, with any ■other reasonable theory than that, when the plaintiff signed the paper, it did so for the purpose of making a binding contract between it and the defendants in accordance with the terms of the paper, and that both parties must have so understood it: The claim that there was no consideration for the obligation of the defendants is manifestly untenable. When plaintiff accepted the contract order, it became bound to ■comply with all its conditions and provisions. Its promise m that regard, which must be implied from the acceptance, was ample consideration for the obligation incurred by defendants. Shadbolt & B. I Co. v. Topliff, 85 Wis. 513. Some question is raised as to the correctness of the finding of the court in regard to the loss suffered by plaintiff on account of defendants’ refusal to receive and pay for the fashion sheets. It is contended that the finding is excessive to the extent of $7.80, and that the error was committed by reason of the court’s taking $3.15 as the cost to plaintiff of each set of fashion sheets, instead of $3.67, which the evidence shows was the average cost to plaintiff, taking into consideration the entire product of their business for the year. There was evidence tending to show that the production of the additional fashion sheets that would have been required to satisfy the breached contract, had the defendants complied with its provisions, would not have exceeded the sum taken by the court as a basis for determining plaintiff’s damages. It seems obvious that,the entire ■expense of preparing the fashion sheets having been incurred, the cost of producing a few additional sheets would — 237 — have been considerably less than the average cost of the-entire product of the business for the year, and that the difference was legitimately a part of plaintiff’s loss. We cannot disturb the finding of the court on that branch of the-case. What has been said disposes of defendants’ appeal. On the plaintiff’s appeal we are required to determine whether the trial court rightly decided that the agreement, whereby the defendants offered to take monthly, as produced and placed on the market by plaintiff, for the period of two-years, one of each size of each style of the McCall bazaar patterns, and plaintiff agreed to furnish such goods, was-void for uncertainty. Where the fatal uncertainty lies, which the trial court-discovered, we are unable to see. Courts are to construe contracts so as to sustain rather than to defeat them, if that-can reasonably be done. Certainty, not uncertainty, is to-be sought for. It is only after applying all the tests which, the rules of law and of reason will permit, to a contract, and a failure thereby to discover, reasonably, what the parties agreed to, that the court should say it is too uncertain to be enforced. Redman v. Hartford F. Ins. Co. 47 Wis. 89; Walsh v. Myers, 92 Wis. 397; Torrence v. Shedd, 156 Ill. 194; Thrall v. Newell, 19 Vt. 202. It was no necessary part of the agreement in question, in order to make it binding, that plaintiff should expressly agree to produce bazaar patterns, or such patterns in any particular quantity. It was perfectly competent for plaintiff to agree to furnish to defendants one set of each style of such patterns as it should produce for sale, and for defendants to agree to take and pay for the same. That made a perfectly certain contract as to what the parties agreed to-do ; time would necessarily render certain the number of patterns to be furnished, received, and paid for. If plaintiff had failed to produce any bazaar patterns, the agreement on. — 238 — the part of the defendants would not have been breached, because their obligation was conditioned upon the production and furnishing of such patterns. The condition being satisfied, the agreement of the defendants to take one set of each style of the patterns immediately became legally binding upon them. Mere indefiniteness as to the amount of material or goods which may be delivered under a contract, or uncertainty even as to whether any will be delivered, is not necessarily a fatal uncertainty. It is sufficient that there be a distinct agreement, supported by a sufficient consideration, to take such quantity as may be delivered and to pay for the same at a price named in or ascertainable by such agreement. Many illustrations of this can be found in the books. In Minnesota L. Co. v. Whitebreast C. Co. 160 Ill. 85, the contract was to the effect that the lumber company would buy such anthracite coal of the coal company as it should need in its business for the season of 1886-87 at a stated price, and the coal company would furnish such coal when ordered. The point was made that the contract was void for uncertainty, because the lumber company was not absolutely bound to take a specific quantity of coal. It was held • that, looking at the situation of'the parties when the contract was made, and construing it in that light, the plain intent of the parties was that the lumber company would continue its business as usual and take of the coal company such anthracite coal as might be required in such business for the period named in the agreement; that it was not essential to the binding force of the agreement that it should be certain as to the precise amount of coal the lumber company would require; that it was sufficient that it was bound to take its supply of coal from the coal company. The court remarked that such contracts are very common, and always regarded as binding. In Smith v. Morse, 20 La. Ann. 220, a contract to take all — 239 — the ice required for a certain hotel for five years was held sufficient, as the parties must have contemplated that the hotel would be continued and that it would necessarily require ice during the whole of such period; and that it was not essential to the validity of a contract that it should be certain in advance as to the actual amount of ice that would be required. National F. Co. v. Keystone Mfg. Co. 110 Ill. 427, involved the validity of an agreement on the part of the defendant to take its supply of iron for the season of the plaintiff, and .on the part of the plaintiff to furnish such iron from time to time as ordered and at certain stipulated prices. The contract was held sufficient as to mutuality and certainty, because the vendee could not, without clearly violating it, take any part of its supply of iron from any other party than the vendor, and the lapse of time would necessarily render certain the quantity of iron the contract called for. Many more like cases might be cited, all to. the effect that a contract is not void for uncertainty if it can be made reasonably certain by reference to its subject matter, or to what was fairly within the contemplation of the parties when it was made. Here the plaintiff was an established concern, carrying on the business, among others, of producing patterns called the McCall bazaar patterns. In the very nature of things, the parties to the transaction assumed that the plaintiff’s business would continue to run as usual, and that it would, from month to month, produce and offer to its customers patterns of the kind specified in the contract. The number of such patterns was necessarily left to be made certain by the operation of plaintiff’s business. That was a matter as plainly within the contemplation of the parties as anything expressly stipulated in the contract, and was as much a part of the contract as if expressly stipulated therein. The foregoing disposes of the only possible theory that can be advanced to sustain the proposition that the agree — 240 — ment to take the bazaar patterns was void for uncertainty, and leaves only to be considered the amount of damages which plaintiff is entitled to recover on that branch of the case. Evidence taken long prior to the expiration of the contract period of two years, as to the probable amount of patterns that plaintiff would produce each month for the balance of such period, as a basis for determining the measure of plaintiff’s damages, was admitted against defendants’ objections. At the time of the trial the full contract period had run, and the case on the part of the plaintiff was susceptible of certain proof as to the exact number of patterns which defendants ought to have taken and paid for. That evidence was not offered. It is considered that the objection by the defendants to the evidence, as to the probabilities of the future operation of plaintiff’s business, should have been sustained. The elementary rule that the best evidence must, be produced that the nature of the case is susceptible of, seems to havfe been clearly violated. Parties are not permitted to establish primary facts by mere inference from other facts, when direct evidence of the former is in existence easily within reach, and there is no excuse whatever for a failure to produce it. This is not a case where prospective profits were required, necessarily, to be assessed under the difficulties attending the determination of such a question where the business in which the loss occurred tvas. not in fact carried on, as in Treat v. Hiles, 81 Wis. 280; Schumaker v. Heinemann, 99 Wis. 251, and similar cases. There the only evidence the nature of the case was susceptible of, was as to what was done in the business when it was operated, as tending reasonably to show what would have been done thereafter had the business continued as the-contract contemplated. On that ground alone, and because,, under the circumstances, such evidence furnished a legitimate basis for the exercise of judgment and for calculation,, — 241 — and was outside of mere conjecture and guesswork, it was' held proper. It will readily he seen that the primary circumstance authorizing such evidence was displaced here by the lapse of time, rendering the exact facts as to the amount of plaintiff’s production of patterns a matter of easy and absolute proof. It follows that the evidence will not warrant a recovery of damages for breach of the contract to take patterns, based on the evidence of prospective manufacture thereof. The' recovery must be confined to such patterns as the proof shows were actually produced and would have been supplied to the defendants but for their refusal to receive them. That amount we determine from the testimony to be $111.12. Upon that sum interest should he allowed at the rate of six per cent, per annum from the time the loss accrued to the plaintiff, which, as near as can be reasonably ascertained, ivas July 1,1898. The interest is allowed as part of plaintiff’s damages, and is necessary to give complete indemnity for the breach of the contract. It is not allowed as interest, strictly so called. J. I. Case Plow Works v. Niles & Scott Co., ante, p. 9. By the Gowri.— The judgment is affirmed on defendants’ appeal and reversed on plaintiff’s appeal, and the cause is remanded with directions to modify the judgment in accordance with this opinion.