Evan L. Reed Manufacturing Co. v. B. Heinemann Lumber Co.

Rosenberry, J. By the terms of the contract the defendant was entitled to cancel it in case there was a default in the [333] making of any payment after such default should continue five days thereafter. If, as defendant contends, the amount of the first shipment was due February 29th, there was a default which continued for five days after notice and the defendant was within its legal rights in canceling the contract. If the amount of the first shipment was not due until sixty days after, date of shipment, as claimed by the plaintiff, the plaintiff is clearly entitled to recover any damages sustained by it by reason of the refusal of the defendant to continue the performance of its contract. The contract says: “That the condition on the reverse side of the sheet is made a part of the contract unless otherwise specified.” Upon the face of the contract, in typewriting, appears: “Terms two per cent, fifteen days from date of invoice.” On the reverse side of the contract, in printing, appears the provision: “The bill for material, not including freight, is payable in sixty days, and is subject to a discount of two per cent, if paid within fifteen days from the date of invoice. If paid after fifteen days and before thirty days, a discount of one per cent, will be allowed, but no discount shall be taken after thirty days from the date of the invoice.” It is the contention of the plaintiff that the statement appearing upon the face of the contract, “terms two per cent, fifteen days from date of invoice,” is merely a repetition of a part of the statement contained upon the back, and that the conditions upon the back control because they are not otherwise specified. The plaintiff further contends that the contract is unambiguous, and that within the doctrine of Hart v. Hart, 117 Wis. 639, 94 N. W. 890, evidence cannot be received to explain the contract. A solution of the question depends entirely upon the meaning of the phrase “two per cent, fifteen days from date of invoice.” If this phrase, standing by itself, means that the buyer shall be 'entitled to two per cent, discount if the bill be paid within fifteen days from date of invoice and that if not paid within fifteen days it shall be due without dis [334] count thereafter, as the trial court found, then the terms of sale so specified are certainly other than the terms set out on the reverse side of the contract and so are “otherwise specified.” Although this is the pivotal question in the case, no evidence, except the correspondence between the parties, was offered by either party to explain the meaning of this phrase. Shipment was made February 14th. On February 28th the defendant at Wausau sent a bill to the plaintiff at Sterling, Illinois, for the amount less freight, stating thereon, “Now due.” In response to this the plaintiff wrote the defendant on March 4th as follows: “We had overlooked the fact that you had made this in the contract, two per cent, fifteen days. . . . “We will, ^f course, pay you in cash if you insist on it, but inasmuch as we will not be able to use the lumber, until it is paid for and we ordinarily have sixty days’ time, we trust that this will be perfectly satisfactory to you.” In the letter the plaintiff asks the defendant to accept a note for forty-five days. March 3d the defendant sent the plaintiff a second statement upon' which was written, “Past due. Remit at once to comply with contract.” On March 11th the plaintiff wrote the defendant as follows : “We have yours of March 8th and note that you cannot accept the note that we sent you. We are therefore sending you check less two per cent.” On March 16th the defendant wrote the plaintiff, retoiting the terms of the contract, claimed that the invoice was due February 29th, claimed that the plaintiff was in default, and canceled the contract. It was not until after the receipt of defendant’s letter canceling .the contract that plaintiff set up the claim that the conditions as to terms found upon the reverse side of the contract governed, and throughout the correspondence there is no claim on the part of the plaintiff that the phrase “two per. cent, fifteen days from date of invoice” [335] does not mean that the buyer is entitled to two per cent, if payment is made within fifteen days and that thereafter the bill is due. The contention made by the plaintiff was that the clauses should be construed together and that when so construed there was no inconsistency. We think the circuit-judge was clearly right in holding upon the evidence in this case that the phrase “two per cent, fifteen days from date of invoice” meant that if the amount of the invoice was not paid within fifteen days the whole amount was thereafter due. This was the construction placed upon it by both parties. The plaintiff could have had no other meaning in mind when it said in its letter of March 4th: “We had overlooked the fact that you had made this in the contract two per cent, fifteen days. We will pay in cash if you insist.” Plaintiff opened negotiations for a modification of the terms, but did not deny that the defendant’s claim as to the meaning of the phrase “two per cent, fifteen days from date of invoice” was proper. Whether the statement of the terms on the face of the contract- overrode, under the terms of the contract, the provisions upon the reverse side, was a question involving the construction pf the contract and a quéstion of law. The plaintiff has never at any time offered any evidence or set up any claim in its correspondence that the meaning of the phrase “two per cent, fifteen days from date of invoice” is other than that, found by the trial court. While the finding of the trial court that the phrase meant “that the purchaser is entitled to two per cent, discount on the price if paid within fifteen days, and if not so paid then the full amount becomes due at the expiration of the fifteen days,” is found among the conclusions of law, it might more properly have been included among the findings of fact. Although denominated a conclusion of law it will be treated as a conclusion of fact. Sherman v. Madison Mut. Ins. Co. 39 Wis. 104. The evidence is ample to sustain the finding. In fact, upon the record as it stands, no other conclusion can be arrived at. By the Court. — Judgment affirmed.