Jung Brewing Co. v. Konrad

Wikslow, O. T. Tbe trial court beld, in effect, tbat tbe written, contract in question was uncertain and indefinite in its terms, so that it could not be determined therefrom whether it required the defendants to ship a carload of malt every week to the plaintiff at Milwaukee without further ■orders, or whether it required the plaintiff to order each carload by separate order before the defendants were required to ship it. So construing the contract, the court, against objection, permitted the introduction of a large amount of parol testimony relating to the situation of the parties and their-negotiations resulting in the making of the contract, as well as testimony relating to the .acts and correspondence of the parties after the contract in the way of practical construction thereof, and submitted to the, jury the question of the proper construction of the contract in the light of this evidence. These rulings were all challenged by the plaintiff on the ground that the contract is definite and certain in its terms, and required the defendants to deliver one carload per week at Milwaukee without further orders. This contention is based upon the written clauses of the written contract which follow the words “Price,” “E. O. B.,” and “When to be shipped” of the printed blank. These clauses provide, in substance, that the price shall be fifty-nine cents per bushel delivered free on board cars at Chestnut Street Station, Milwaukee, to be shipped one car per week beginning in the last week of November. If these clauses stood alone there would seem to be very good ground for the plaintiff’s contention, but [116] they do not. Immediately following them, in response to the question “In Bags or in Bulk?” the contract says “as ordered,” meaning unquestionably that the plaintiff is to specify by separate order whether a given carload is to be shipped in bags or in bulk. Following this, the shipping directions, “Via C., M. & St. P. R B.,” are given, and the line of the blank, headed with the word “To,” is left unfilled. Taking-all the provisions together, and in connection with the significant, and apparently deliberate, omission of the place to which shipments were to be made, it seems clear to us that the contract is uncertain on its face, and that it cannot certainly be told by reference to its terms alone whether the parties agreed that a separate order should precede the shipment of each car or not. In this situation, evidence of the situation and surroundings of the parties as well as their communications, so far as such communications throw light upon the situation, were competent to be received in order that the court might read the contract in the same light as the parties did when they made it. Excelsior W. Co. v. Messinger, 116 Wis. 549, 93 N. W. 459. The parol evidence so received was amply sufficient to show that the understanding was that cars should be shipped either to the Milwaukee brewery or to the Covington brewery as the plaintiff should order, and that when shipped to Milwaukee the malt was to be shipped in bulk, and when shipped to Covington it was to be shipped in bags, and that in either event the defendants were to pay the freight to Milwaukee. Not only does this clearly appear, but it is also certain that the parties practically construed the contract to mean that shipping orders were to precede shipments by the letters of January 8 and 9, 1901, which are quoted in the statement of facts. Under such circumstances the question of the meaning of the parties and the proper construction of the uncertain terms of the written contract was for the jury. Vilas v. Bundy, 106 Wis. 168, 81 N. W. 812. [117] Some special objections were made to certain items of the parol testimony which was received, but we do not find it necessary to consider them. Upon the evidence which was unquestionably competent, the jury would not have been justified in coming to any different conclusion. There can be, in fact, no serious question but that, if parol evidence were competent, the contract must be construed as the jury construed it. The sole remaining question which we deem it necessary to consider is whether there was a waiver by the defendants of the plaintiff’s breach of the contract. The contract, as properly construed by the jury, required the plaintiff to order one carload per week beginning with the last week in November. A carload contained from 1,900 to 2,000 bushels, •and, had a carload been ordered each week, the performance of the contract would have been completed during the first week in February. The plaintiff ordered one carload in November and one-in December. On January 8th the defendants wrote, calling attention to the default, and in effect demanding that the plaintiff live up to the contract in the future. The plaintiff then ordered another carload, which upon delivery was claimed to be not up to contract requirements. A serious dispute arose on this question, which was finally settled by the defendants consenting to a slight reduction of price on February 4th. From this time until March 25th there was complete silence between the parties. The . plaintiff gave no orders and the defendants made no demand for orders. On the 25th of March the plaintiff ordered a carload to be delivered, and on the following day the defendants declined to deliver any more and declared the contract canceled. Were they entitled to take this action at this time ? There may be a breach of an executory contract by deliberate refusal to perform stipulations upon which''the obligation of the other party depends, and, when such breach takes place, the other party has a right to treat the contract as [118] wholly terminated and take measures accordingly. But if be do ,not treat the contract as terminated, but continue to demand performance, be will be beld to have kept the contract alive. He cannot treat the repudiation of the contract as a breach and as no breach at the same time. Woodman v. Blue Grass L. Co. 125 Wis. 489, 103 N. W. 236, 104 N. W. 920; Davidor v. Bradford, 129 Wis. 524, 109 N. W. 576; School District v. Hayne, 46 Wis. 511, 1 N. W. 170; Kaukauna E. L. Co. v. Kaukauna, 114 Wis. 327, 89 N. W. 542. Undoubtedly the defendants waived the breach occurring prior to January 8th by their letter of that date, but this letter cannot reasonably be held to waive further defaults, for it contains an unmistakable request to live up to the contract in the future. Had the plaintiff notified-the defendants that it would order no more cars, the defendants would have been entitled to treat the contract as breached,, because their obligation to ship was dependent upon the receipt of orders. While mere failure to make timely orders-might not of itself alone constitute a breach upon which defendants could stand, there doubtless may be unequivocal acts which will speak a definite refusal to further perform just as loudly as words. It has been held that the true question is whether the acts and conduct of the party evince an intention no longer to be bound by the contract. Hoffman v. King, 70 Wis. 372, 378, 36 N. W. 25. By their answer to the fourth question the jury found that there were such acts in the present case, and the question must be whether that finding was justified by the evidence. Upon mature reflection we think it was. After receiving the request of January 8, 1907, to make up the previous default in orders, the plaintiff wrote excusing its default and ordered another carload, but found fault with the quality of the last shipment, and said that “we must insist on the same quality as your first shipment.” Upon receiving the carload sent in response to this order the plaintiff wrote, complaining seriously of its [119] quality, and saying: “We cannot accept anything that is not according to tbe agreement.” Tbe dispute over tbe quality of tbis carload lasted ten days and became somewhat acrimonious, and was only settled by tbe defendants accepting a reduction in price, although both parties stood their ground. Erom January 9th until March 25th the plaintiff ordered no cars, although the market price was steadily advancing and the contract becoming daily more advantageous to the plaintiff and correspondingly disadvantageous to the defendants. Under many circumstances the failure to send orders for two months might be a very insignificant matter, but certainly that cannot be said here, where prompt ordering of a product, subject to great and rapid changes in market value, was evidently a very material part of the arrangement. In view of the nature of the contract, the evident intention that there was to be rapid delivery, the dissatisfaction with the January shipment, and the repeated declaration of the plaintiff that it would insist upon the delivery of a better quality of malt in the future, in the face of defendants’ claim that the quality was unexceptionable, we think that there was ample ground for the defendants to conclude that the plaintiff’s failure to order any more cars, or make any sign for a period of nearly two months after delivery should have been completed, under the terms of the contract, was a deliberate repudiation of the contract by the plaintiff upon which they were entitled to stand. As they neither did nor said anything thereafter indicating that they expected 'or demanded performance of the contract, it cannot be said that they treated the contract as still existing, or waived their right to treat the repudiation as a breach. By the Court. — Judgment affirmed.