Sauer Hide Co. v. Stein

Eschweiler, J. Plaintiff moved to dismiss the defendant’s appeal herein. The motion was argued, and without any opinion being then filed was denied. The grounds for such, denial are now set forth. The judgment in the circuit court was entered March 27, 1920. On March 29th a notice, affidavit, and undertaking on appeal was prepared on behalf of defendant from such judgment. The notice was directed to the clerk of the circuit court and to plaintiff’s attorneys. Service thereof was admitted by that clerk April 14, 1920, and it was then marked “Filed.” On April 13, 1920, defendant’s attorney inclosed a copy of such notice of appeal and undertaking thereon in a letter to plaintiff’s attorneys, the attorneys for the respective parties both residing in and having their respective offices in the city of Milwaukee. It is a conceded fact that such letter with the inclosure was received by plaintiff’s attorneys not later than the following day. No — 193 — written admission of service was made by plaintiff’s attorneys and the copies were not returned. August.3, 1920, the respondent paid the necessary fees for the transmission of the record, and the record, having as a part thereof the said notice of appeal, affidavit, and undertaking, with admission of service by the clerk of the circuit court, was sent to this court, and filed on August 3, 1920. November 24th the attorneys for plaintiff and respondent admitted in writing due service of four copies of the printed case and made a similar written admission of service of the appellant’s printed brief on December. 1st. Respondent’s counsel subsequently forwarded to the clerk of this court a written stipulation made between the parties that this cause, which was regularly set on the then calendar for argument on December. 16th, should be continued to the January, 1921, term of this court without costs to either party and that an order to that effect might be made without other or further notice. The cause was so' continued. On March 21, 1921, a year and a day after, the entry of the judgment in the circuit court and just a day after the statutory period for the taking of an appeal had expired, plaintiff’s attorneys served notice on defendant’s attorneys of a motion returnable April 5th in this court for a dismissal of the appeal on the ground that this court has no jurisdiction either of the subject matter of the appeal or of the person of the respondent upon the grounds hereinafter discussed. Sec. 3049, Stats., providing for. appeals to this court, requires service of written notice of the appeal upon the adverse party and the clerk of the court from which the appeal is taken. Sec. 2820, defining and describing the manner of service, provides, among other things, for personal service by delivery of a copy of the paper to be served to the party or attorney on whom service is to be made. — 194 — Provision is made by sec. 2821 for service by mail where the person making the service and the one on whom.it is to be made reside in different places. Respondent urged that where, as here, the attorneys for both sides resided in Milwaukee, the mailing of the copy of the appeal papers to respondent’s attorneys was entirely ineffectual and in no sense a délivery of them or the statutory personal service that is required, and that the personal service required under sec. 2820, supra, has been differentiated from service by mail. Adams v. Wright, 14 Wis. 408, 414. That for want of a showing of proper service of the appeal papers there is an entire absence of jurisdiction in this court of the subject matter of the appeal as well as of the person of the respondent and no authority to hear the appeal upon the merits or to do more than to dismiss such attempted appeal. Former decisions of this court passing upon the then statutory provisions as to service and the necessity of proof thereof appearing in the record have been called to our attention and examined, among others Koch v. Hustis, 110 Wis. 62, 85 N. W. 643; Munk v. Anderson, 94 Wis. 27, 68 N. W. 407; Herrick v. Racine W. & D. Co. 43 Wis. 93; Eaton v. Manitowoc Co. 42 Wis. 317; Yates v. Shepardson, 37 Wis. 315; all of these indicating the strictness with which such rules were formerly applied. The same doctrine was reiterated in the later case of Haessly v. Secor, 135 Wis. 548, 116 N. W. 175. That the later judicial decisions, however, were beginning to lessen the rigor with which such statutory requirements had been construed, is suggested in Liesner v. Wanie, 156 Wis. 16, 19, 145 N. W. 374. Subsequent to all of these, decisions, however, and in line with the more recent suggestions of this court, the legislature, in the exercise of its wide control over the subjects of the matters which may and the manner in which they shall be appealed (Dempsey v. Nat. S. Co. 173 Wis. 296, 181 N. W. — 195 — 218), by ch. 219, Laws 1915, passed an act for the declared purpose of simplifying and expediting legal procedure, amending certain specified sections of the statutes, and adding, among others, a new section which now appears as sec. 2836a, the. material part whereof reads as follows: “Whenever an appeal is attempted to be taken in a matter, action or proceeding in which an appeal is authorized by statute from any inferior court, tribunal, officer, or administrative board to any court of the state, and return is duly made to such court, the respondent shall be deemed to have waived all objections to the regularity or sufficiency of the appeal or to the jurisdiction of the appellate court over person or subject matter, unless he shall make such objection by motion to dismiss such appeal before taking or participating in the taking of any other proceedings in said appellate court. . . It is manifest that such section refers to appeals attempted to be taken to this court and is applicable to. the present situation. Prior to this motion to dismiss, the plaintiff, respondent here, admitted due service of copies of the printed case and brief respectively on this appeal and stipulated in writing that the appeal regularly set for. hearing on the August, 1920, calendar, of this court should be continued to the present term. Upon such stipulation the cause was so continued in this court. By such acts the respondent, before making its objection on the ground of alleged want of jurisdiction by its motion to dismiss, did participate in the taking of other proceedings in said cause in this court within the meaning of this statute. The respondent therefore has waived any right it might have had to question the jurisdiction of this court on this appeal. Upon the merits we are convinced that the finding of the jury in favor of the defendant on the trial in the civil court upon which judgment was rendered there in defendant’s favor should be sustained. — 196 — Prior to Saturday noon, August 11, 1917, Groves, the Chicago broker, had been in communication with plaintiff with reference to the sale of this particular lot of 2,500 to 3,000 hides, and, the prospective customer or customers with whom Groves was then negotiating not agreeing to the terms as proposed by plaintiff, the negotiations in that regard were concluded. Up to this time Groves was in no manner an agent for the defendant. Defendant on his coming to Groves was informed by the latter of the substance of the telephone communications between Groves and the president of the plaintiff at a time when a price of twenty-five cents was under consideration and of the statement therein made that this particular lot of hides was not expected to run over thirty-five or forty per cent, number 2’s, but that no guaranty on that point had been offered by plaintiff other than it would not exceed fifty per cent, number 2’s. Defendant was not .shown the prior telegram from the plaintiff to Groves and relied upon by it in this case as forming the basis of the contract in which the terms were specified that all number 2’s must be included at the price of twenty-four and one-half cents. That the broker, Groves, understood the proposition as presented to "defendant to include a guaranty by plaintiff that not more than fifty per cent, number 2’s was to be included in the transaction is established from the testimony and by the confirmation of the order forthwith executed and mailed by Groves in which such condition is expressly mentioned. Plaintiff was fully apprised of the situation from the start by its receipt of the confirmation and by its calling Groves’s attention to the alleged discrepancy between the confirmation and plaintiff’s prior telegram and on this particular point. Plaintiff requested an amendment to the confirmation sent by Groves, but none such was ever, sent and plaintiff proceeded to ship the goods without any written modification or change in the confirmation of sale by Groves and retained by plaintiff. — 197 — It is true, as urged by respondent, that the defendant in the original answer admitted the making of a contract in writing between the parties, and so long as such admission stood it could well be held to bind defendant, as was held by both the civil and the circuit courts. Such admission, however., did not identify or fix the terms of the Contract. The complaint in reciting the plaintiff’s version of the contract omitted any reference to any proportion of number 2’s that were to be included in the sale, as appears from the quotation given in the statement of facts.- Subsequent to the filing of the complaint the plaintiff made two formal admissions of record that can properly be held as binding on it, as was held the admission of the contract in writing on the defendant. These were (1) the statement in the bill of particulars expressly reciting that the contract upon which plaintiff sued did contain the condition that not more than fifty per cent, number 2’s should be included; (2) the reply to the counterclaim admitting that the contract between the parties was as to “the price and quality substantially-as set forth in the counterclaim,” the counterclaim expressly reciting that the contract between the parties did contain just such a provision. There was therefore ample support for. the conclusion arrived at by the jury and sustained by the civil court, namely, that the contract was as claimed by defendant with this fifty per cent, guaranty, rather than as insisted upon by plaintiff during the time of the several shipments and on argument here, as giving it the contract right to include more than such percentage of number 2’s. We cannot accept the theory of respondent that the two telegrams, the one from plaintiff to Groves in which it was stated that at the price of twenty-four and one-half cents all the 2’s must be included, and Groves’s telegram, “Accept hides as offered,” constituted the entire and binding contract between plaintiff and defendant and rendered inadmissible — 198 — evidence as to the oral communications between Groves' and the plaintiff's president find between Groves and defendant. At the time the telegram from plaintiff to Groves was received Groves was not the agent of defendant, nor acting as broker between plaintiff and defendant, and such telegram relating to then pending negotiations between other persons could not be held to be binding upon defendant. The situation is manifestly different from that presented in the cases cited to our attention in which the broker was acting during an entire transaction and period for but the two parties interested. The telegram, “Accept hides as offered,” does not on its face so identify the offer thus proposed to be accepted as to tie it down to the former telegram of plaintiff to Groves, and it presented a situation where the defendant was entitled to show that the offer therein specified as being accepted was the one presented to him by Groves: Mr. Sauer, plaintiff’s president, testified on the trial that after he had been informed that the defendant would not accept or pay for. the first carload of hides because it contained about sixty-six per cent. 2’s rather than fifty per cent; and that Groves had instructed his inspector to stop work and return to Chicago, he nevertheless insisted on forwarding the second and third cars and induced the inspector to remain to finish the sorting. After the shipment of the first carload, therefore, the second and third were sent by plaintiff knowing that the defendant had elected to declare the contract breached and no longer binding because under defendant’s understanding as to the contract it was not being carried out in a substantial respect by plaintiff. Mr. Sauer persisted in his view that he had the right to ship all the 2’s in the lot even if they ran beyond the fifty per cent., in spite of protests by Groves and plaintiff and in spite of the fact that Groves had failed to send any modification in that regard of his written confirmation of the sale to defendant. Not until after Mr. Sauer had knowledge of the refusal of defendant to accept the goods did he change his proposition — 199 — with reference to the contract or offer to make up in the third car the deficiencies in the number l’s sent in the first and second cars. It is urged by respondent that, the purchase being for an entire lot, plaintiff had the right to send a greater proportion than fifty per cent, of number 2’s in the first and second car provided that on the completion of the shipment by the three carloads there was ultimately tendered defendant the contract proportion. It is unnecessary here to determine that question as a statement of general law governing such classes of contracts for the reason that the testimony stands undisputed in this case, as given by plaintiff’s witness Groves, that in this particular line of business the custom of the trade permits a buyer under such a contract, finding that the first shipment is not in accordance with a provision as to the proportions of the grades of hides, to consider such failure a breach of the contract, and it is then entirely at his option to consent to receive any subsequent shipments with sufficient of the higher quality to make up the deficiency in the prior shipments. It is undisputed that defendant promptly, upon receipt of the invoice showing this discrepancy, elected to cancel the contract. It being undisputed that there was such a custom in this particular business, it of course controlled and governed the rights of the parties in this action, there being no provision in the contract to the contrary. The defendant, therefore, in view of this testimony, was by virtue of such custom justified in his refusal to accept the first and subsequent shipments of the hides. It follows that the circuit court erred in reversing the judgment of the civil court and directing judgment for. plaintiff, and that the judgment of the civil court should be affirmed. By the Court. — Judgment reversed, and cause remanded with directions to affirm the judgment of the civil court.