Newell v. New Holstein Canning Co.

Siebeckeb, J. The questions arising on the errors assigned in the record require a construction of the agreement sued upon. Under this agreement appellant sold respondents 2,000 cases standard three-pound (can) tomatoes at eighty cents per dozen, of the quality 1901 pack, cases to be well filled with red ripe fruit, to be delivered when packed. [638] Among other agreements, it provided that either party might reduce the quantity covered by the contract to fifty per cent, of the order, hut that notice of such reduction must he given not later than July 1, 1901, and that “if by the destruction of the cannery by fire, or if on account of strikes, or from any other cause over which the seller has no control, he is prevented from performing this •contract, he shall not he liable for any damages for such failure.”' Appellant complains of the trial court’s ruling in refusing to receive the evidence of the contents of letters which passed between appellant and the firm of brokers through whom respondents made the contract. This testimony was apparently ■offered to put the court in possession of facts and circumstances: Eirst, to show the intention of the parties in making the contract; and, secondly, to show that both parties contemplated, as a condition of this agreement, that the tomatoes sold were to be raised on appellant’s fields, situated near its canning factory. The evidence offered tended to prove matters aside from the surrounding facts and circum■stances of the parties to the contract which is proper to aid the court in construing it. This evidence would add an article to the agreement not expressed or covered by its terms. The terms of the contract are plain and definite in meaning in their literal sense, and also when applied to the subject-matters covered by the transactions. If an ambiguity exists in the contract in either respect, then “evidence of the circumstances under which the contract was made is proper to enable the court, in the light thereof, to read the instrument in the sense the parties intended, if that can be done • without violence to the rules of language or of law.” Johnson v. Pugh, 110 Wis. 167, 85 N. W. 641, and cases cited. This rule does not, however, permit evidence to be introduced of communications respecting it, made prior to and ■explanatory of the writing. To admit such evidence would [639] ■violate this well-established rule, and add a condition to the .agreement clearly excluded by its terms. The action of the trial court is sustained by well-known rules governing written contracts. One of the defenses to excuse delivery of the tomatoes specified in the contract was that appellant was prevented from performance owing to unusual frosts in the month of September, whereby their fruit and the crop in the immediate vicinity and the eastern part of the state were destroyed; and on that account it had raised no tomatoes, nor could it procure any in the vicinity of the factory to comply with this undertaking. Does this present a state of facts which relieves the company from performance of the contract ? It is claimed the provision that “if by the destruction of the cannery by fire, or if on account of strikes, or from any other cause over which the seller has no control, he is prevented from performing this contract, he shall not be liable for any damages for such failure,” covers and includes the destruction of the tomato crop by frost, as shown by the evidence, and excuses appellant from full performance of the agreement. There is no allusion in the contract to any particular source from which these tomatoes were to be taken except that they should be of the 1901 pack of appellant’s cannery. Eeading the material provision in the light of the facts and ■circumstances under which it was made, it seems a reasonable and natural conclusion that the parties did not intend that appellant was undertaking to sell and deliver tomatoes to be grown upon a particular field, or in the immediate neighborhood of the cannery. Had the sale been to deliver a crop grown on appellant’s field, or in the neighborhood of the cannery, then the destruction by frost of the crop so ■specified might be held to he an excuse for the nonperformance of the undertaking under the rule that the promise to deliver a specific article depended on the assumed existence ■of it at the time of performance, and that it was destroyed [640] without its fault, rendering performance impossible. Appellant, however, was not restricted under the contract to such field or neighborhood to procure tomatoes to fill the contract. It had the right to go into the open market and purchase tomatoes of the kind and quality specified in the agreement, pack them at its cannery, and deliver them to respondent under the terms of the contract. It therefore was its duty to make all reasonable effort to secure the necessary fruit, and pack it at its cannery, to enable it to comply with. its promise. The question arises, Does the evidence tend to-show that appellant took the necessary steps to comply with this obligation ? It is undisputed that the tomato crop on its field and in the immediate vicinity of the cannery was destroyed by frost, on the 18th or 19th of September. It is testified that this, frost extended over the eastern portion of the state. The material part of the evidence on this subject is the testimony of the secretary of the company. ITe states that the efforts made to secure tomatoes for packing at appellant’s cannery were limited to two inquiries in the market — one at St. Naz-ianz, eleven miles from the cannery; and the other at Appleton, forty-six miles from the factory. Mo other efforts were-made to procure the fruit in other portions of adjoining territory or in the open market. For aught that the evidence-discloses, appellant might have secured all the tomatoes needed in the market within a reasonable distance from the factory, making it feasible and practicable to buy the fruit and transport it to the cannery for the purpose of this undertaking. Under this state of facts and circumstances, no grounds were established constituting a legal excuse relieving appellant from performing its obligations under the agreement, and respondents had a right to insist on performance. These conclusions result in affirmance of the action of the trial court in directing a verdict for respondents. Johnson v. Pugh, 110 Wis. 167, 85 N. W. 641; Nilson v. Morse, [641] 52 Wis. 240, 9 N. W. 1; Sigerson v. Cushing, 14 Wis. 527; Jackowski v. Illinois S. Co. 103 Wis. 448, 79 N. W. 757; Boden v. Maher, 105 Wis. 539, 81 N. W. 661; Hesser-M.-R. Coal Co. v. La Crosse F. Co. 114 Wis. 654, 90 N. W. 1094; Anderson v. May, 50 Minn. 280, 52 N. W. 530; McGehee v. Hill, 4 Port. 170; 1 Am. & Eng. Ency. of Law (2d ed.) 590, and notes. Appellant tendered 300 cases of tomatoes in part performance of tlie contract. On this point we are of tlie opinion that the agreement is an entire one, and respondents were not obliged to receive a part of the fruit when it was tendered with the understanding that appellant did not intend to deliver the whole. Sutherland, Damages (2d ed.) §§ 651, 652; McGehee v. Hill, supra. An exception is preserved, upon which it is urged that the court allowed an excessive amount of damages. It is insisted that one of the articles in the agreement stipulates that the damages for the nondelivery of any quantity less than seventy-five per cent, should be seven and one half cents per dozen cans as liquidated damages. This, however, is conditioned upon the giving of notice by the party seeking to avail himself thereof to the other party not later than July 1, 1901. ISTo such notice was given. Neither party can therefore invoke this right. The judgment of the circuit court was properly awarded. By the Gouirt. — The judgment of the circuit court is affirmed.