Racine Shoe Manufacturing Co. v. Badger Manufacturing Co.

Siebeckbb, J. The demurrer to the two causes of action alleged in the complaint calls for an interpretation of the contracts upon which plaintiff relies for a recovery. The defend [97] ant insists tbat plaintiff is precluded from enforcing payment for any of tbe goods delivered under tbe contracts, because its assignor omitted to perform its part of tbe contracts by failing to manufacture and deliver all tbe shoes called for in tbe agreements. Tbis claim is made on tbe ground tbat tbe agreements clearly sbow and express tbe, intention tbat nothing should become due under tbe contracts for a delivery of any portion of tbe goods; in other words, it is asserted tbat tbe parties contemplated full performance in furnishing tbe goods called for as a condition precedent to recovery on tbe contracts. Tbe contracts, however, provide for tbe payment of tbe goods delivered under them.. It is stipulated tbat tbe defendant should pay for shoes furnished by plaintiff’s assignor as sbon as it should receive pay for tbe same, or any part thereof, and tbat it would promptly pay as soon as it should receive any money on account of tbe contracts. The terms of tbis stipulation are plain, and clearly indicate tbat payment should be made immediately upon tbe delivery and acceptance of any part of tbe goods, and as soon as defendant received any money on account thereof from the government. Tbis manifestly excludes tbe idea tbat a delivery of all tbe goods was a condition precedent to recovery for any portion of tbe goods delivered and accepted under tbe contract. Tbe. parties seem to have so understood tbe agreements. It is alleged tbat defendant made payment on goods delivered. Though tbe complaint does not show tbat these payments were apportioned to tbe quantity of goods delivered or money received from tbe government on áccount thereof, presumably they were made as contemplated by tbe stipulations, which required defendant to pay for them, or any part, promptly upon receipt of any money on account thereof. It is evident tbat they understood payments were to be made in instalments as delivery progressed. Under such terms of the agreement tbe failure to deliver a part of tbe goods does not absolve defendant from liability for tbe goods delivered, and [98] accepted by tbe government; and when it refused to pay plaintiff had the right to maintain an action for the value of the portion delivered according to the contracts, less the amounts found due defendant for disbursements and losses as specified in the complaint. 2 Mechem, Sales, § 1163; Hoffman v. King, 70 Wis. 372, 36 N. W. 25; Schweickhart v. Stuewe, 71 Wis. 1, 36 N. W. 605; Goodwin v. Merrill, 13 Wis. 658; Jacobs v. Spalding, 71 Wis. 177, 36 N. W. 608; Ornstein v. Yahr & L. D. Co. 119 Wis. 429, 96 N. W. 826. By the Court. — The order overruling the demurrer is affirmed. Dodg-e, J., took no part.