Wilbur v. Means

Owen, J. The jury found that the defendant accepted the sight draft for $500 as a first payment on the house-ice contract on condition that plaintiffs should promptly pay the balance then due on the stack ice and that the plaintiffs did not promptly make payment of such balance. This finding was essential in order to constitute the delinquency of the plaintiffs, if any, in making payment for the stack ice a breach of the house-ice contract. We have carefully searched the record for evidence to sustain this finding of the jury, but we are unable to find a scintilla of evidence to support it. On the contrary, the evidence, taken as a whole, to our minds, negatives any such understanding. ' There is not a word of evidence indicating that the defendant Means entertained any anxiety or dissatisfaction because of the unpaid balance on the stack ice, or that at any time he was pressing for payment. His letter of June 12th, in which he states that they would “load the last car of stack ice tomorrow,” does not suggest any dissatisfaction on his part [406] in such respect; but indicates his willingness and purpose to immediately commence shipment on the house-ice contract. He says: “I have received several communications from you and will try to ans. at least some of them,” which is a tacit admission of his own delinquency, in replying to communications received by him from the plaintiffs. He admits that one bill of lading did not indicate the weight of the ice in one car, from' which it conclusively appears that plaintiffs did not have at hand the data upon which to compute the amount due defendant on the stack-ice contract. That he had not sent them a statement of the amount due on this contract as late as June 27th is indicated by his notation at the foot of plaintiffs’ letter to him under date of June 27th, where he said: “Returning check; will send you statement of full account.” Furthermore, defendant does not claim in his testimony that he stated or intimated to Wilbur, on the 19th, that the receipt of .the draft for $500 was conditional upon the prompt payment of the amount due upon the stack-ice contract, or that he was in any manner concerned about the unpaid balance. We therefore conclude that this part of the special verdict cannot stand. A breach of the contract on the part of plaintiffs excusing defendant from further performance must'rest solely upon the finding of the jury in response to the third question of the special verdict, which was to the effect that on June 25, 1919, more than a reasonable time had elapsed for the making of payment by plaintiffs for the cars of ice shipped June 16th, 17th, and 18th after receipt by plaintiffs of railroad weights. Granting that an unreasonable time did elapse, a breach of the contract is not the necessary or inevitable result. It depends “on the terms of the contract and the circumstances of the case.” Sub. 2, sec. 1684t — 45, Stats.; Ambler v. Sinaiko, 168 Wis. 286, 170 N. W. 270. The question is therefore whether, under the terms of the contract and all the facts and circumstances, the failure of plaintiffs to pay for the ice shipped on June 16th, 17th, and [407] 18th authorized the defendant, to treat the contract as breached on the part of the plaintiffs and to refuse to make further delivery on June 25th. It is not entirely plain whether the $500 cash payment was to be an advance payment to be applied on the first shipments or whether it was to be a payment in the nature of security for the entire contract, to be retained by defendant and applied on the last shipments. The circuit judge construed the contract to mean-the latter. Without expressing any opinion thereon we will, for present purposes, assume that to be the proper construction. We have now to take into consideration the provision of the contract calling for “satisfactory arrangements for the payment, at the conclusion of which defendant wrote plaint-P. J. Buckley or his assigns of railroad weights” at the time of making the $500 payment, and the prior course of dealing between the parties under the stack-ice contract, which was very similar. We have seen that $100 was paid down on the stack-ice contract; that the first car of ice shipped was paid for immediately, but the remainder of the stack ice, amounting to $249.48, was shipped without further payment, at the conclusion of which defendant wrote plaintiffs that he would immediately start shipment ypon the house-ice contract. There was no protest of past practices, no withdrawal of credit, and no indication that a different manner of payment was expected. In view of the course of dealing between the, parties under the stack-ice' contract and the interview between Wilbur and Means on the 19th of June, it is clear to us that plaintiffs had a right to assume that similar dealing with reference to the house-ice contract was satisfactory to the defendant. In view of this course of dealing it was the duty of the defendant to bring home to plaintiffs the fact that he expected prompt payments for each car of the house ice shipped, if it was his intention to insist and rely upon that construction of the contract. Granting that he had a right to insist upon that manner of [408] payment, he could not lead .the plaintiffs to believe that the former course of dealing was satisfactory and, without advising them to the contrary, insist upon a breach of the. contract without demanding or requesting a different method of payment. It is therefore our conclusion that the defendant waived his right (if any he had) to- insist upon a breach of the contract by reason of the failure of plaintiffs to make prompt payment upon each car shipped, and that he had no right to refuse further deliveries as he did on the 25th day of June. It follows that plaintiffs are entitled to recover their damages by reason of the failure of defendant to deliver the ice pursuant to the terms of the contract, and the judgment must be reversed, and the cause remanded with instructions to enter judgment in favor of plaintiffs and against defendant for the difference between the amount of their damages, computed upon the market price of ice loaded on cars at Rhinelander, as found by the jury, and the amount due defendant for ice shipped. By the Court. — Judgment reversed, and cause remanded with instructions to enter judgment for plaintiffs for the amount of their damages as indicated in the opinion.