John O'Brief Lumber Co. v. Wilkinson

Cassoday, C. J. 1. The fii*st question calling for consideration is as to whether it was an abuse of discretion for the trial court to refuse to allow the first, second, and third counterclaims, respectively, to be amended, so as to allege that, by the custom in the locality and neighborhood where the contracts were made and to be performed, the expression “to put and load on cars,” contained therein, “was uniformly used and understood as the equivalent . . . ‘to put and load on cars to be furnished by the owner of the logs/ " as mentioned in the foregoing statement. For the purpose of this — 278 — appeal we assume that such proposed amendment only embraced a local custom. Such refusal was contained in the order of February 15, 1904, mentioned in such statement. Whether it was an abuse of discretion, of course, depends upon the circumstances. The action was commenced two years and eight months prior to the making of the order so complained of. The original complaint was verified July 19, 1901. The defendants answered, and thereupon the plaintiff served an amended complaint October 14,1901. The defendants answered such amended complaint November 6, 1901, and therein alleged six several counterclaims. November 29, 1901, the plaintiff replied to such counterclaims. March 10, 1902, the defendants amended their answer to the amended complaint. April 2, 1902, the plaintiff replied to the fourth, fifth, and sixth counterclaims, and April 7, 1902, the plaintiff amended such reply. April 23, 1902, the plaintiff demurred to the first, second, and third counterclaims. September 11, 1902, the trial court sustained such demurrers, and from the order sustaining the same the defendants appealed to this court, where the order was affirmed April 17, 1903. 117 Wis. 468, 475. August 29, 1903, the defendants again amended their answer, setting up an equitable counterclaim to the effect that each of such contracts was by mutual mistake so written as to impose upon the defendants the duty of furnishing and supplying the cars, instead of being so written as to impose such duty upon the plaintiff, as had been actually agreed between the parties, as mentioned in tire foregoing statement; and November 10, 1903, an order was entered to the effect that such amended answer stand as the answer of the defendants in the case, and that the plaintiff have twenty days to reply to the same. November 30, 1903, the plaintiff replied to such counterclaims. Under such circumstances, and upon such proposed amendment to the answer alleging such local custom, and upon an affidavit of one of the attorneys, for the defendants, having the principal charge of the action, — 279 — wherein it was stated that the facts set forth in such proposed amendment were first disclosed to him December 22, 1903, while preparing for trial, • and that, while such facts were apparently known to the defendants, yet they were unaware of their significance and bearing upon the merits of the action, the court refused to allow such amendment. Thus it appears that, before attempting to inject into the case the element of local custom, the defendants had remodeled their answer three different times, and the last time was several months after this court had affirmed the order of the trial court holding, on demurrer, that neither the first, second, nor third counterclaim stated a cause 'of action in favor of the defendants and against the plaintiff. We fail to find in the record any good excuse for such delay of nine months after such affirmance, and sixteen months after the -entry of the order so affirmed, before attempting to allege local custom. It is conceded that the defendants knew of such local custom at the time of the making of such several contracts. In fact, to be available in construing such contracts, it was essential that both parties, at the time of making such contracts, had knowledge of such local custom. This, when properly pleaded, may be shown by proof of actual knowledge, or that such custom has been so general that the parties are presumed to have knowledge of it. 12 Cyc. 1039, 1040. Thus it is said: “Particular usages and customs of trade or business must be known by the party to be affected by them, or they will not be binding, unless they are so notorious, universal, and well established that his knowledge of them will be conclusively presumed.” Id. 1041, 1042. See Power v. Kane, 5 Wis. 265; Scott v. Whitney, 41 Wis. 504; Hinton v. Coleman, 45 Wis. 165; Hewitt v. John Weck L. Co. 77 Wis. 548, 46 N. W. 822; Brunnell v. Hudson S. M. Co. 86 Wis. 587, 57 N. W. 364; Chateaugay O. & Iron Co. v. Blake, 144 U. S. 476, 12 Sup. Ct. 731. We must assume, therefore, that the defendants had knowledge of such local custom, if any existed, during all the in — 280 — tervening years after the making of the several contracts, and the attempt to allege it, and yet the case had been pending for more than .two years and a half before there was any attempt to allege such local custom. Certainly, the allowance or disallowance of such an amendment was addressed to the sound discretion of the trial court. Milwaukee & M. R. Co. v. Finney, 10 Wis. 388; Studebaker Bros. Mfg. Co. v. Langson, 89 Wis. 200-203, 61 N. W. 773. We cannot hold that there was an abuse of discretion in refusing to allow such amendment. 2. Error is assigned because, on the trial of the equitable issue made by the reply to the counterclaim alleging mutual mistake in the making of the contracts, the court excluded testimony tending to prove a general and uniform custom for the owner of the logs to furnish the cars. No such custom was alleged in such counterclaims. But “a general usage or custom need not be pleaded.” 12 Cyc. 1097. The reason is, courts take judicial notice of such general custom. Id. 1098. Vogt v. Shienebeck, 122 Wis. 491, 100 N. W. 820. Such .general custom may be presumed to have entered into the contract and bind the parties. Gehl v. Milwaukee P. Co. 105 Wis. 573-580, 81 N. W. 666; S. C. 116 Wis. 263, 93 N. W. 26. As there said in the opinion of the court in that case, on the first appeal: “A uniform trade custom is readily accepted by courts to define what is ambiguous or is left indeterminate in a contract, where both parties have knowledge of the custom, or are so situated that such knowledge may be presumed; for the reason that the majority of such transactions are had in view of the custom, and the agreement on which the minds of the parties actually met will thereby be carried into effect. Jones, Construction of Cont. §§ 100, 103. Where the custom is proved to be known to both, it may even add terms to the contract. Scott v. Whitney, 41 Wis. 504; Hewitt v. John Week L. Co. 77 Wis. 548 [46 N. W. 822].” So it is said that “evidence of usage is allowed not only to explain, but to add tacitly implied incidents to the contract — 281 — in addition to those which are actually expressed.” 12 Cyc. 1082 — citing numérous cases in support of the proposition, including the one last mentioned, and Lamb v. Klaus, 30 Wis. 94. In this last case the plaintiff sought to recover the pur•chase price of shingles sold and delivered to the defendant under a written contract. By way of equitable counterclaim, "the defendant sought to reform the written agreement on the ground of mistake in making the same. That issue was first tried and determined against the defendant, and such determination was not presented to this court for review. The answer further alleged, and evidence was offered tending to prove by practical construction and general custom and usage, that the defendant was entitled to interest on advances made by him on such written contract; but the court excluded the 'Evidence so offered, and for that reason the judgment was reversed by this court. Lamb v. Klaus, 30 Wis. 94, 95, 102. This court held that, by refusing to reform the written contract, the trial court in effect held “that the written contract -expressed all that the parties meant to express therein ” and that it did “not estop either party from proving a usage which entered into the agreement.” In other words, and as indicated in the opinion of DixoN, C. J., in that case, and the other authorities cited, evidence of general custom and ■usage is admissible to explain and enlarge the meaning of a written contract actually made, but has a very remote, if any, 'bearing in establishing a different contract, which, if made ■through mistake was never reduced to writing. Assuming the existence of such general custom and usage, still we are constrained to hold that the findings of the trial court upon the equitable issues, to the effect that nothing was omitted from or left out of either of the three written contracts in -question by mistake, are sustained by the evidence. Certainly we cannot hold that such findings are against the clear preponderance of the evidence. 3. Error is assigned because, while attempting to prove on — 282 — cross-examination of the plaintiff’s president, O’Brien, that at the time of mating the first contract with the defendants,. May 2, 1898, the defendant Wilkinson knew of the contract which the plaintiff had made with the railroad company about two-weeks before, and after testifying, without objection, that he did not know whether Wilkinson knew he had that contract or not; that he never mentioned it to him, and never knew that any one mentioned it to him, but “presumed that maybe Gifford did” — which words in quotation were stricken out by the court. Gifford had, at the time, charge of the plaintiff’s office in Ashland, but had since died. Then, after testifying, without objection, that he did not know what Gifford had done, the court sustained an objection to a question as to whether he had any reason to believe that Gifford spoke to Wilkinson about the contract with the railroad company. We perceive no error in such rulings. Such testimony was at most conjectural. 4. Error is assigned because the court sustained the demurrer ore terms to each of the first three counterclaims. These counterclaims and the contracts therein alleged, and upon which they were respectively based, are the same as-when this court affirmed the order of the trial court sustaining the demurrers to such counterclaims on the ground that neither of them stated facts sufficient to constitute a cause of' action in favor of the defendants and against the plaintiff. 117 Wis. 468-475, 94 N. W. 337. Every question decided by this court on that appeal is res adjudícala, and absolutely binding, not only upon the trial court, but also upon this-court. Keystone, L. Co. v. Kolman, 103 Wis. 300, 303, 79 N. W. 224, and cases there cited; Hart v. Moulton, 104 Wis. 349, 353, 80 N. W. 599; Rupiper v. Calloway, 105 Wis. 4, 7, 8, 80 N. W. 916; South Bend C. P. Co. v. George C. Cribb Co. 105 Wis. 443, 81 N. W. 675; McCord v. Hill, 117 Wis. 306, 308, 94 N. W. 65. Since the decision on the former appeal is res adjudícala, it is unnecessary to determine whether — 283 — that decision would have been different bad tbe reasons here-urged been there presented. Since it was there held that neither of the three counterclaims stated facts sufficient to-constitute a cause of action in favor of the defendants and' against the plaintiff, it is obvious that no evidence under either of those counterclaims was admissible against the objections on behalf of the plaintiff. As indicated in some of the authorities cited on another branch of this case, that included evidence of practical construction and general custom.. We must hold that there was no error in sustaining such demurrers ore terms. 5. Error is assigned because the court withdrew from the-jury the issues raised by the reply to the sixth counterclaim. That counterclaim was to recover $3,300 as the balance due on the sale and delivery to the plaintiff by the defendants of a locomotive engine, and refusing to permit such counterclaim to be amended upon the trial. It is undisputed that, to secure the repayment of $1,114.34 advanced by the plaintiff for the-benefit of the defendants, they gave to the plaintiff a bill of sale for the engine, October 21, 1899, which was in legal effect a chattel mortgage; that, pursuant to notice posted in two-places, the engine was sold thereon by the plaintiff to the Edward Hines Lumber Company, November 21, 1901, for less than the amount due on such mortgage. The trial court held' that, if the sale was fair, the defendants had no cause of action therefor; and that if such sale was unfair, yet that, as the debt secured by the engine was due, and the plaintiff had' taken possession prior to the sale, the legal title passed to the plaintiff, as mortgagee, and the only‘remedy of the defendants was in equity to redeem. In such.ruling the court followed the decision of this court, wherein it was held: “Where the mortgagee of chattels has taken possession after a default, the mortgagor has no longer, any legal title to the property, and cannot maintain replevin therefor. His only remedy is by a bill in equity to redeem.” Holzhausen v. — 284 — Parkhill, 85 Wis. 446, 55 N. W. 892. To the same effect, Klinkert v. Fulton, S. & M. Co. 113 Wis. 493, 501, 89 N. W. 507, and cases there cited. Nor can tbe “mortgagor, without proof of payment or other •extinguishment of the mortgage, maintain an action against ■the mortgagee for a conversion of the property.” Hill v. Merriman, 72 Wis. 483, 40 N. W. 399. The engine was not sold at private sale, but on public notice, as stated. Assuming that the sale was not made in strict conformity to the statute (sec. 2316a, Stats. 1898), still it did “not operate as a cancellation •of the mortgage debt in the sense that the mortgagor is entitled to recover the property or its value without regard to the amount remaining due on the mortgage.” Gauche v. Milbrath, 94 Wis. 674, 69 N. W. 999. See Vreeland v. Waddell, 93 Wis. 107, 67 N. W. 51. It follows from what has been •said that there was no error in refusing to allow the counterclaim in question to be amended on the trial, so as to allege that the plaintiff appropriated and converted the proceeds of •such sale to its own use. 6. The error assigned in admitting testimony of the train •dispatcher, Downs, as to cars being returned partially loaded, ■on the ground that it was hearsay, seems to be unfounded, since such testimony was stricken out and the jury instructed to disregard it. Error is assigned in permitting Clark, the assistant manager of the railroad, and Wilcox, the treasurer •of the railroad, to testify as to claims made by the railroad ■against the plaintiff for difference in freight between the actual weight of the cars, as loaded, and the minimum load of the cars stipulated for in the railroad contract, and claims "therefor against the plaintiff, and as to the receipt of bills therefor. Such evidence was admitted under the contract of August 2, 1900, upon which the fourth counterclaim was 'based. In that contract the plaintiff agreed in terms to furnish the cars. The evidence wras offered in support of the offset pleaded in the reply to that counterclaim, and seems to — 285 — Rave been admissible for that purpose. The argument is that it was inadmissible to prove that sufficient cars were furnished to the defendants. But no specific objection was made upon that ground, nor was the court requested to restrict the consideration of such evidence to the offset so pleaded in the' reply. Since the evidence was admissible, when offered, as-tending to prove such offset, the error, if any, is in failing to restrict the consideration of such evidence to that purpose.. Under the circumstances mentioned, we must hold that the-admission of such testimony was not reversible error. Tebo v. Augusta, 90 Wis. 405, 407, 408, 63 N. W. 1045; Hiles v. Hanover F. Ins. Co. 65 Wis. 585, 27 N. W. 348; Cayon v. Dwelling House Ins. Co. 68 Wis. 510, 32 N. W. 540; Erdall v. Atwood, 79 Wis. 1, 6, 47 N. W. 1124. Especially is this so since the plaintiff at the close of the trial, and before the case was submitted to the jury, withdrew its claim of offset to the fourth counterclaim, and the jury found that the defendants had no cause of action under that counterclaim. By the Court. — -The judgment of the circuit court is affirmed. SlEBECKER, J., dissents.