Saveland v. Western Wisconsin Railroad

Siebecker, J. The court submitted to the jury the question of the authority of C. W. Norris, as treasurer of the company,' to make the contract in question, without instructing them in the law -as to how such authority could be given him in cases of this kind. Defendant’s counsel requested the court to instruct the jury that the treasurer of a corporation, unless given power by the articles of incorporation, by-laws, or other express direction of the corporation, has no authority to act as purchasing or contracting agent, and, further, to instinct them as to what constitutes apparent authority for the treasurer to act as such agent. There is no evidence in the case showing that Norris, as treasurer, was vested with authority to make contracts like the one in question, by defendant’s articles of incorporation, by-laws, or other express direction. The question whether he had apparent authority to make contracts of this nature was to be determined by the jury upon the conflicting evidence material to this branch of the case. No instruction was given them on this subject, though defendant’s counsel submitted and requested an instruction embodying the rule applicable to the facts and circumstances of the case. The rules of law in the light of which the jury were called upon to resolve this disputed question of fact should have been given them, to remove the uncertainties and speculations we now encounter in trying to ascertain what rules of law the jurors acted on in deciding this disputed question. The omission to so instruct the jury may have [271] caused them to apply some rule uot recognized in tbe law, or adopt some theory wholly foreign to the issue involved. We are of opinion that such refusal to instruct upon this subject was prejudicial to defendant’s rights, and constitutes reversible error in the case. The record raises the inquiry as to the right of the plaintiff to maintain this action, in view of the uncontradicted fact that the contract sued on is not the written order of December 11th. The jury found that plaintiff and defendant on or before December 11th agreed that hard-burned sewer bride, at $10.25 per M., should be furnished under the order of December llth> instead of kiln-run bride at $9.75 per M., as contemplated in said order. The court received plaintiff’s parol testimony of negotiations concerning this change in the order of December 11th to sustain his cause of action for the sale of hard-burned sewer brick at $10.25 per M. Is the contract upon which plaintiff relies as a sale of the brick valid in the law, under sec. 2308, Stats. 1898, requiring such a contract of sale to be in writing ? Does this order show upon its face, and without resorting to extraneous evidence, that defendant purchased a quantity of hard-burned sewer brick at $10.25 per M. ? Certainly no such inference could properly be drawn by the court. But no claim is made that such a conclusion could be reached in the absence of oral testimony in connection with the order. Plaintiff did not rely upon the order alone, but offered parol evidence tending to show that the sale was consummated at an interview on or before December 14th, the day when the right to rescind the order by defendant expired. But the paper is wholly silent as to any agreement by the parties that the sale was of hard-burned sewer brick at $10.25 per M., instead of kiln-run brick at $9.75 per M., as specified on the face of the order. To establish plaintiff’s cause of action required the introduction of parol proof to show the actual bargain and sale, in addition to the written memorandum. These facts present a case [272] where parol testimony was, of necessity, resorted to, to show a modification of the written agreement, wbicb is contrary to the statute to prevent frauds. The rule is well stated by Chancellor Kent (2 Comm. 511): “Unless the essential terms of the sale can be ascertained from the writing’ itself, or by a reference contained in it to something else, the writing is not a compliance with the statute; and, if the agreement be thus defective, it cannot be supplied by parol proof, for that would at once introduce all the mischiefs which the statute of frauds and perjuries was intended to prevent.” Atlee v. Bartholomew, 69 Wis. 51, 33 N. W. 110; Wiener v. Whipple, 53 Wis. 298, 10 N. W. 433; Meincke v. Falk, 55 Wis. 427, 13 N. W. 545; Hanson v. Gunderson, 95 Wis. 613, 70 N. W. 827; Blood v. Goodrich, 9 Wend. 68; Grafton v. Cummings, 99 U. S. 100; Salmon Falls Mfg. Co. v. Goddard, 14 How. 446; American Oak L. Co. v. Porter, 94 Iowa, 117, 62 N. W. 658; Beach, Mod. Cont. § 581; Renjamin, Sales, § 221. An important ground of error assigned pertains to the rule of damages in the case. The court instructed the jury as follows : “When it appeal’s that the purchaser knew that the vendor had an existing contract for the purchase of merchandise, and the vendor is making a resale to him at an advance price, the profits on such resale are the damages contemplated by the parties in case of the breach of the contract of purchase.” The basis of damages in the action is the breach' of the ex-ecutory contract of sale. It sufficiently appears by the evidence that brick — the article of sale covered in plaintiffs cause of action — is a commodity of purchase and sale in the open market. The case comes within the established rule of damages where a vendee breaches the contract by refusal to accept the article sold. The measure of damages in such cases is the difference between the market value of the property at the time of the breach and the contract price at the [273] place of delivery. T. B. Scott L. Co. v. Hafner-Lothman Mfg. Co. 91 Wis. 667, 65 N. W. 513; Pratt v. S. Freeman & Sons Mfg. Co. 115 Wis. 648, 92 N. W. 368; Gehl v. Milwaukee P. Co. 116 Wis. 263, 93 N. W. 26. Eor these reasons, the judgment must he reversed. By the Court. — Judgment reversed, and cause remanded for a new trial.