Merchants & Manufacturers Bank v. Terrace Realty Co.

Eschweiler, J. On the plea in abatement there was a substantial issue of fact raised as to whether there was a definite meeting of the minds of the parties as to the subject matter of the proposed arbitration. The language used in the correspondence between the parties did not definitely specify such points and it was therefore proper to receive oral testimony of the surrounding circumstances in order to make such matters definite and certain, if possible. Upon such evidence the court might properly find that that which defendant’s' counsel had in mind as being intended to be covered and included by the arbitration was not the same thing as that which was within the contemplation of plaintiffs counsel, and, having found in favor of the defendant on such issue, we see no ground now for disturbing such judgment. No question is raised but that under the assignment as executed by the Northwestern Concrete Company to the plaintiff and under the provisions of sec. 2606, Stats., the-defendant could have successfully interposed as a complete defense to this action by the plaintiff the setoff or counterclaim arising by réason of the' breach of the guaranty to defendant by the Northwestern.Concrete Company as found by the civil court, except and unless by its letter of December 24, 1915, set forth in the statement of facts above, it is prevented from now asserting such defense. It is contended by appellant that the letter of December 24th contains no promise to pay the amount of $1,703.50 mentioned therein, and went no further than to acknowledge* the correctness of the amount stated of the unpaid account of the Northwestern Concrete Company with the [114] defendant and the further fact that the bank was by such assignment now the owner thereof, and it is claimed that from the testimony of Mr. Greene, defendant’s secretary and the writer of the .letter of December 24th quoted above, he intended thereby to say no more than that if there was anything legally due from the defendant to the Northwestern Concrete Company on October 1, 1915, the defendant was willing to pay such amount, if a.ny, to the bank on account of such assignment. The defendant was under no legal obligation to make any statement whatsoever with reference to the amount due from defendant to the Northwestern Concrete Company or to make any statement concerning the same. Having elected, however, to do so, as embodied in its letter of December 24th, and having therein undertaken to make a positive statement of its accepting the assignment subject to certain possible deductions that might arise by reason of the filing of liens by any materialmen for the work, and that unless deductions were to be made in accordance with such exception there "would be a definite sum due on the following 1st of October, it must be held to have .thereby, by implication, excluded its right or intention to assert any other possible deduction from such account, and to have given an express recognition of a sum then payable except for the certain contingencies therein mentioned, and this case, therefore, is squarefy within the holding in Batavian Bank v. M., St. P. & S. S. M. R. Co. 123 Wis. 389, 101 N. W. 687. As found by the court, the plaintiff, in reliance upon the acceptance ‘of such assignment and upon such assignment, extended the time for the payment of the then existing obligations of the Northwestern Concrete Company. Having so acted, there was sufficient in such a situation to bind the defendant to the statements in its letter of December 24th by way of estoppel. By the Court. — Judgment affirmed.