Fromme v. O'Donnell

Maesiiall, J. The essential assignments of error refer to whether the trial court correctly construed the contract. If there were error in that, numerous other errors were committed in rejecting evidence offered by appellant, and the final conclusion is erroneous. It seems that controlling significance was given by the .Learned circuit judge to that feature of the contract indicating that the title to the paving material was to and did pass to appellant upon his accepting the same from the car [532] at Milwaukee. It was to be furnished at $1.85 per square yard “F. O. B. cars at Milwaukee, Wis.” Tbe quoted term unmistakably shows that the parties intended a change of title upon delivery. Vogt v. Schienebeck, 122 Wis. 491, 100 N. W. 820. It does not follow necessarily, however, that the amount to be paid for the material became then fixed. The general rule is that as between vendor and vendee the title to Hie subject of the transaction passes from the one to the other when the terms of sale are agreed upon and everything the vendee has to do with the matter has been done. Abraham v. Karger, 100 Wis. 387, 76 N. W. 330. Nothing appearing to the contrary, it is presumed that the price to be-paid for the property is to be fixed theretofore, but it is perfectly competent for parties to so contract that the title shall pass to the vendee and the property may be taken and appropriated by him, and the amount he shall pay be subsequently determined. Sewell v. Eaton, 6 Wis. 490 ; Morrow v. Campbell, 30 Wis. 90. Whenever it is apparent that the parties intended at the inception of their contract of sale that the title to the subject thereof should pass to the vendee and the-measurement thereof be thereafter made, and the amount to be paid therefor determined according thereto, that will govern. Gill v. Benjamin, 64 Wis. 362, 25 N. W. 445; McConnell v. Hughes, 29 Wis. 537; Fletcher v. Ingram, 46 Wis. 191, 50 N. W. 424; Pike v. Vaughn, 39 Wis. 499; Smith v. Wis. Inv. Co. 114 Wis. 151, 89 N. W. 829. So it was a mistake to suppose that merely because the-title to the paving material passed to appellant upon his accepting the same from the car that then was necessarily the-time to ascertain the amount to be paid therefor, and that nothing having been done in that regard by the vendee he-was governed by the measurement made by the vendor. The-matter wholly turns on the intention of the parties expressed in the contract. It seems that if tire learned trial court had viewed the [533] writing in the light of the foregoing a different conclusion would readily have been reached than the one complained of. It seems to us quite plain that the contracting parties intended that the measurement of the paving material should he after it was laid on the viaduct according to the specifications covering the work. Respondent agreed to furnish “enough” of such material “to pave 16th Street Viaduct” at $1.85 per square yard. The term “enough,” etc., in connection with tha.t which is a matter of common knowledge, viz.: that lumber is generally sold by the square foot, and that in laying such a pavement as was contemplated in this case there is necessarily some waste, the amount of which cannot be accurately determined in advance, suggests very forcibly that the quantity to be paid for was to be determined by measurement of the completed work. That is rendered unmistakable, we may well say, by the term “payment for the above to be made monthly as estimates of engineer in charge of the work are allowed by the common council and approved by the mayor for deliveries made during the previous month, you to pay the freight and deduct same from settlement.” If payments were to be made according to measurements of material at the time of the delivery there was no occasion whatever for the quoted clause. It is significant only when regarded as prescribing the manner the amount to be paid should be determined and the time when payments should be made. It shows pretty clearly, if not beyond room for reasonable controversy, that the idea which the contracting parties had in mind was that the vendor should be paid on the measurements forming the standard for appellant’s compensation, the measurements made as the work progressed to be regarded as estimates, and the exact amount of the material furnished to be determined by measuring the entire work at the completion thereof, final settlement to be then made, and the advances for freight allowed to the vendee. The foregoing renders further discussion of the case un [534] necessary.- It requires a reversal of the judgment, and canse to he remanded with directions to the trial court to take such further evidence as may he necessary to a determination of the correct amount of paving material to he credited to the respondent, and after determining that fact to thereon, and on those facts heretofore found, not disturbed on this appeal, render the proper judgment. By the Court. — So ordered.