Cochrane v. Jacob E. Decker & Sons

Rosenberry, J. The plaintiff contends that the matters set up in the defendant’s counterclaim were not pleadable as such under the provision of sec. 2656, Stats., relating to counterclaims, because the cause of action set out in the counterclaim sounded in tort and was not pleadable in a contract action. [42] The cause of action set out in the counterclaim arose out of the transaction set forth in the complaint, and under the liberal construction given to the provision of sec. 2656 in the case of McArthur v. Moffet, 143 Wis. 564, 128 N. W. 445, was properly pleadable by way of counterclaim. The principal contention of the appellant is that the court erred in striking out certain testimony and excluding other evidence offered as to the meaning of the words ‘Their prices,” used in the agreement of the parties made February 1st. The plaintiff contends that under Ganson v. Madigcm, 15 Wis. 144; Boden v. Maher, 105 Wis. 539, 81 N. W. 661; Vilas v. Bundy, 106 Wis. 168, 81 N. W. 812, and other Wisconsin cases, he was entitled to show the meaning of the words “their prices,” and that the words were used with a limited or particular meaning. There are two answers to this contention. We are not left to the words “their prices,” standing by themselves, to ascertain the intent of the parties to this contract. By the agreement of February 1st the defendant is to bill all product at “their' prices” f., o. b. Mason City. The plaintiff is to receive the difference between such prices and the prices for which he sells the product, and if he sells for less than the billing price the difference is to be deducted from amounts due the plaintiff, and the plaintiff agrees that the defendant is to receive at all times the total value of the shipment as priced. It is to be remembered that the contract did not require the plaintiff to accept and pay for any specified amount of packing-house product. He might order from the defendant when and as he saw fit. There is therefore nothing inconsistent in permitting Decker to place such prices upon the goods shipped by the defendant as the market warranted. To say that this referred to cost price would be unreasonable as to the defendant, for the plaintiff might, wait and if prices went up order large amounts of goods, and if prices declined fail to order any goods; an ar [43] rangement to which no prudent business man, situated as was the defendant, would consent. In addition to that, the course of dealing between the parties shows that the contract was construed to mean that the plaintiff should take the goods at the price fixed by the bills or invoices rendered to the plaintiff. Not until the suit was begun, although there was considerable correspondence and negotiation between the parties, and the plaintiff expressed dissatisfaction with the defendant’s prices, was the claim set up that the price was to be determined in any other way than is clearly indicated by the language of the contract; that is, that the plaintiff was to pay the price'at which the goods were billed to him. We are of the opinion that the evidence was properly stricken out and excluded. The argument is made that, because the' contract permitted the defendant to fix the prices at which its goods should be sold, the contract is void as against public policy. We are of the opinion that no question of public policy is involved. The plaintiff was not required to order any goods from the defendant. He knew the prices at which the goods were being billed to him; he"knew the market prices; and had he not supposed that he could handle the goods at a profit he would not have continued the arrangement (as he did) for several months. Several other errors are assigned which we shall not treat in detail.. We have examined the voluminous record of seven or eight hundred pages, and have carefully considered the points raised by appellant’s attorneys, and ar'e of the opinion that the record shows no substantial error: By the Court. — Judgment affirmed.