Wenger v. Marty

Dodge, J. The first error assigned is the exclusion of evidence of plaintiff’s statements made to the defendant before the contract was entered into as to the measure of his skill and ability as a cheese-maker. The contract industriously added as a measure of the plaintiff’s duty his own ability. Without such element it would have been his contract duty to exercise the skill, diligence, and care of an ordinarily competent and careful cheese-maker; but that duty was either limited, confirmed, or increased by his agreement that the work should be done “to the best of his ability.” If both parties had known at the time of the making of the contract that plaintiff was a novice in the trade, this phrase might well mean that the devotion of such skill and ability as he possessed should satisfy the contract, although not equal to that ordinarily exercised. If, on the other hand, both parties met upon the understanding that plaintiff was an extraordinarily skilful man, it could have no such relaxing effect, and might even require a higher degree of .diligence and skill. Hence the term was ambiguous. Ho court can know without evidence what is the measure of an individual’s skill any more than it can know the length of his foot or arm. Hence extrinsic evidence was admissible to identify the standard of measurement tiras referred to by the contract; in other words, to identify the thing to which the contract applied. Chicago, St. P., M. & O. R. Co. v. C., M. & St. P. R. Co. 113 Wis. 161, 170, 87 N. W. 1085, 89 N. W. 180; Rib River L. Co. v. Ogilvie, 113 Wis. 482, 89 N. W. 483; Merrill v. Best, 116 Wis. 121, 92 N. W. 555; Excelsior W. Co. v. Messinger, 116 Wis. 549, 93 N. W. 459; Perkins v. Owen, 123 Wis. [412] 238, 245, 101 N. W. 415; Edwards v. Wis. Inv. Co. 124 Wis. 315, 319, 102 N. W. 575. Therefore error was committed in excluding the evidence of the ability which the plaintiff had, which evidence consisted of his own declarations; as also evidence of the understanding and knowledge of the parties as to the extent of that ability at and before the making of the contract. We cannot think this error harmless, for the charge carried to the jury the same ambiguity apparent on the face of the contract. They were told that plaintiff’s duty was performed if he did the cheese-making in a good and workmanlike manner to the best of his ability, and they were further instructed as to the effect of his negligence in making him liable for loss and damage on bad cheese in such immediate connection with this phrase “best of his ability” that they must have understood that he would be free from negligence if he in good faith exerted such ability as he had. Hence they may have concluded that, though the work was done without customary skill and care, he nevertheless was not in default under the contract. The second assignment of error was upon certain refusals to give instructions, and to -the charge itself in contrast therewith, on the subject of waiver of plaintiff’s negligence by the defendant. The court charged: “Acceptance of the cheese from time to time with full knowledge of its condition, crediting plaintiff therefor upon the books and paying him the agreed price for making it without protest or notice to the plaintiff that the cheese did not meet the contract requirements and that he would be held responsible for the damage, would be a waiver on his part of damages. . . . The testimony is in conflict upon this subject, and you are to determine what the facts axe in accordance.” This instruction is first criticised because it applied to the relations between the parties all the tests of waiver properly applicable between buyer and seller upon the delivery of articles under an executory contract of sale. Ketchum v. [413] Wells, 19 Wis. 25; Locke v. Williamson, 40 Wis. 377, 381; Olson v. Mayer, 56 Wis. 551, 14 N. W. 640; Northern S. Co. v. Wangard, 117 Wis. 624, 94 N. W. 785. The situation liere ivas very different. Plaintiff was a mere servant working in the defendant’s premises with defendant’s material and appliances to transform those materials from milk to cheese. After the transformation 'was complete the product remained in the factory for considerable periods, from three to eight weeks, with no opportunity for the defendant to inspect or h> know the character either of the service rendered or of the product thereof, and when the opportunity finally came to observe the quality of that product there was no new acceptance of it by the defendant, for it had been his property and in his legal possession at all times; and there was no opportunity for him to reject, perhaps no right to reject because of defects in the product, for plaintiff’s agreement was not to make good cheese, but to exercise due skill and diligence. Defendant could do nothing but dispose of it for the best price obtainable, for it was irrevocably his. Neither could there then be any opportunity for plaintiff to correct any failures of duty on his part several weeks after the manufacture of the cheese was complete. Hence his position was not changed in reliance on defendant’s silence. Further, the plaintiff had already, by the time there was any opportunity to inspect the cheese, drawn advance payments upon his compensation which, if applied upon the service earliest rendered, would have fully paid for the work performed upon that particular cheese which on inspection was found defective. At that time the contract was fully executed as to the particular cheese. The question, therefore, of intent to waive breaches of the plaintiff’s agreement for diligent and skilful labor was in no wise controlled by the rules stated by the court, but by very different considerations, which we shall not undertake now’ to specify, but which are applied in decisions as to the relations between employers and em [414] ployees, of which the following are some illustrations: Keller v. Oberreich, 67 Wis. 282, 30 N. W. 524; Dickinson v. Norwegian P. Co. 101 Wis. 157, 76 N. W. 1108; Raipe v. Gorrell, 105 Wis. 636, 81 N. W. 1009; Morwoe W. W. Co. v. Monroe, 110 Wis. 11, 85 N. W. 685; Kaukauna E. L. Co. v. Kaukauna, 114 Wis. 337, 339, 89 N. W. 542. The charge, therefore, for this reason was misleading and erroneous. It was further misleading and erroneous for that it told the jury that the evidence was conflicting upon several subjects where there was absolutely no conflict or where there was entire absence of evidence. Thus there can hardly he said to have been any evidence of the acceptance of the cheese with foil knowledge of its condition, for when the manufacture of a block of cheese was complete it was piled on shelves in the cellar of the defendant’s cheese factory where plaintiff worked, and was as completely in the legal possession of the defendant as it ever could he, and yet at this time there is not the slightest evidence that defendant had any knowledge or opportunity for knowledge of the defects in its condition. Eurther, there is no single word of evidence that the plaintiff was ever credited on defendant’s books therefor. The evidence goes no further than to indicate that a record was kept of the amount of cheese made at the factory where plaintiff worked. Indeed the first actual book entry of which any proof appears in the record is the charge against the consignee when a shipment of cheese was made upon commission or oh a sale. Again, the payment of the agreed price for making the cheese was wholly without proof. The evidence is undisputed that plaintiff from time to time drew money necessary for his living expenses, the amount of such advances being wholly without relation either to any particular quantity or consignment of cheese manufactured by him or to the total amount which he had at any time manufactured. Indeed it would appear, at least inferentially, that [415] .moneys were drawn by bim sufficient to cover tbe services long before the product of such services had come under defendant’s inspection. Mere advances of money of this sort are hardly ever significant of any purpose to accept or waive .«defects in the service or property. Eor the reason stated the judgment must be reversed. But there is another element in this contract which seems mot to have attracted as much attention from the court as it should. The final clause of the contract was industriously written into a printed blank, and, under a familiar rule, sueh written addition is deemed specially significant of the intention of the parties. That clause, quoted in the statement of facts, is a warranty against injury resulting from plaintiff’s negligence. Its obvious purpose was to enable the parties to proceed under the relations contemplated by the contract until the defendant, in the course of such transactions, had reached the point of suffering such loss, which could not •occur and be definitely ascertained until he had actually disposed of the cheese manufactured by the plaintiff. A right to recover damages under such a warranty may undoubtedly he waived, as indeed may any contract right; but its purpose, and therefore its effect, is to absolve the defendant from much of his duty to object to or reject the service# from time to time as they are rendered. An inference of intent to waive will not result from the same circumstances of mere silence and continuance of service as might be effective in the absence of such warranty. Starke v. Crilley, 59 Wis. 203, 18 N. W. 6; Schweichhart v. Stuewe, 71 Wis. 1, 5, 36 N. W. 605. Other assignments of error are so1 involved in the views already expressed that their discussion in detail is .unnecessary, since reversal must result upon the grounds already ■stated. By the Court. — Judgment reversed, and cause remanded Tor a new trial.