Campbell & Cameron Co. v. Weisse

Seebeceeb, J. The exception especially urged by appellant bears upon the construction given the contract by the trial court. The foregoing statement of facts shows that appellant contracted with respondents for the sale and delivery of its entire season’s product of hemlock bark of 200 cords, more or less, at $5 per cord; the terms of payment being-cash within ten days from receipt in carload lots. The court. 494 held the contract apportionable. An inspection of its terms discloses that the bark as purchased was to be delivered in definite portions, and that the price of each portion was payable upon delivery at the fixed contract price, and that such payment was not conditioned upon the delivery of the remaining portions of the season’s, product, nor was the requirement of a full delivery of the quantity purchased conditioned upon payment having been made for the portions shipped. Respondents’ default of payment for any carload shipment at the time agreed upon gave appellant a right to enforce payment for the quantity delivered, regardless of its intention to fully perform its obligation to deliver the remainder of the bark. Respondents were likewise entitled to insist upon full performance of the contract in having the quantity purchased delivered, though there be default in payment of the quantity delivered, upon the ground that the payment for such delivery is not a condition precedent to the complete performance of the contract by appellant. Appellant failed to deliver all of the bark covered by the contract, •and therefore became liable to respondents for the damages resulting from such breach. Goodwin v. Merrill, 13 Wis. 658; Widman v. Gay, 104 Wis. 277, 80 N. W. 450; Palm v. O. & M. R. Co. 18 Ill. 217; Christian Co. v. Overholt, 18 Ill. 223. It is claimed by appellant that the court erred in refusing to set aside the finding of the jury as to the quantity of bark it failed to deliver under the contract. The jury found that it amounted to 118% cords. We are unable to find any evidence in the case supporting this finding. The only evidence bearing upon the question of the quantity of bark appellant had at Platt’s Junction was the testimony of its woodman, Mr. Henke, who fixed the quantity at not to exceed sixty-three cords. Upon this state of the proof the court should have granted the motion to change the answer to the second question in the special verdict, striking out the finding that 495 appellant failed to deliver 118% cords of bark under tbe contract, and substituting the quantity shown by the undisputed evidence, sixty-three cords. There is no claim that the dam- ’ ages to respondents for the breach of the contract-was other than at the rate of $2 per cord for the undelivered quantity, making a total of $126; nor is there any controversy but that respondents owed a balance of $195 for the portion delivered before suit was commenced. Appellant was entitled to judgment for the difference between the balance so found due it for the bark delivered and the amount of damages respondents sustained by appellant’s failure to deliver the entire quantity covered by the contract, with the costs of the action. By the Court. — The judgment of the circuit court is reversed, and the cause remanded with directions to amend the special verdict by changing the answer to the second question, and to enter judgment in appellant’s favor for the balance due it as specified in the opinion, with costs.