Quaker Maid Corp. v. New Holstein Canning Co.

Rosenberry, J. The trial court, in sustaining the demurrer to the original complaint, filed a written opinion. The complaint was thereupon amended in several particulars. The demurrer to the amended complaint was thereafter sustained without opinion. The final confirmation is dated April 12, 1920, and although the complaint alleges that the contract was made on the 10th day of April, we think that allegation is controlled by the correspondence attached, it appearing that both parties interpreted the contract as expiring on April 26th by its terms. The complaint alleging that the embargo was released on April 26, 1920, the defendant could not, as alleged in the complaint, rely upon the provisions of the contract with reference to the embargo as grounds of cancellation. Therefore it must be held that the complaint states a cause of action. The proposal made by the defendant in its letter of April 21st was a proposal to extend the time of performance upon [282] condition that the buyer, the plaintiff, send the defendant a check “to hold until such time when we will be able to- get permission to make shipment.” In response to that proposal the plaintiff sent its check, upon the face of which was the indorsement set out in the statement of facts. Indorsed as it was, the check was clearly a non-negotiable instrument and did not comply with the request of the defendant. Therefore there was no modification of the contract, the proposal made by the defendant not having been accepted by the plaintiff. The time of performance was therefore not extended. There is some discussion in the case as to the effect of the failure of the defendant to attach a revenue stamp to the check. The defendant admits that under the decision in State ex rel. Hemmy v. Miller, 173 Wis. 412, 179 N. W. 815, 181 N. W. 745, the check is not invalid, but argues that, it being unstamped, the defendant might reject it for that reason. The difficulty with this position is that it does not appear that the check was rejected for any reason, the complaint in this respect being very indefinite. If the defendant received the check and retained it as a compliance with the terms of its proposal, a situation would arise which is not presented by the allegations of the complaint in this case. For the reasons stated it is considered that the complaint states a good • cause of action and the demurrer should, therefore, have been overruled. By the Court. — The order appealed from is reversed, and the cause remanded for further proceedings according to law.