Stark v. Burnham Bros. Brick Co.

The following opinion was filed January 10, 1922: Eschweiler, J. The writin’g of August 29th, accepted as it was by plaintiffs, became the contract between the parties. It reads as follows: “Gentlemen: In accordance with the verbal order given our Mr. H. this a. m., we are today entering your order for 500 M. common brick at $12 per M. net delivered to the Plankinton Packing Company, Milwaukee. It is understood that all. these brick are to be taken by you within six months from date.” We think it plain and unambiguous upon its face, and upon payment or tender of payment by plaintiffs to the defendant for the purchase price of such brick the plaintiffs became entitled to have the same delivered to them at the place designated in the contract. Upon payment the bricks became the property of the plaintiffs, and the defendant could have no concern with what was done with them subsequent to delivery and such vesting of title. The contract was evidently one for the delivery of the brick by instalments. It is immaterial,' however, whether the duty to pay for the same did not arise until completion of the entire delivery under sec. 1684f-r-42, Stats., or arose for each instalment as delivered, under sub. 2, sec. 1684f — 45, because for the brick actually delivered payments were made and accepted without question from time to time, and as to the undelivered balance of the order a tender for the full amount thereof was made by certified check, and no question raised as to the sufficiency of that as a tender. [335] Neither from the face of the contract nor from the testimony in the record can we construe this contract as containing an implied obligation on the part of the plaintiffs that the brick therein specified are not only to be delivered at the Plankinton Packing Company’s yard but are to be used solely in work to be done by the plaintiffs for that company. It is urged by defendant that, inasmuch as sub. 5, sec. 3315, Stats., provides for a penalty for any person furnishing materials under a contract who shall purchase such materials on credit representing at the time of making the purchase that the same are to be used in a designated building or other improvement, and thereafter use said materials in the construction of any other building or improvement than that so designated without the written consent of the seller of the materials, such statute should be by implication considered a part of the contract, and that therefore the use by plaintiffs, or claim by them of right to use these brick for other work than'that done for the Plankinton Packing Company, must be considered a breach of their contract obligation. This contract was not a purchase upon credit, nor does the contract contain, even when read in the light of the surrounding circumstances, any representation that the same are to be used for any particular work or improvement for the Plankinton Packing Company by plaintiffs. Evidently it was not so considered at the time by the parties, because by sub. 1 of the same sec. 3315 a materialman situated as was the defendant here is required, within thirty days after furnishing the material for any specific building or improvement, to give written notice of such undertaking to furnish materials to the owner of the building or improvement. The record is silent as to any such notice having been given by the defendant to the Plankinton Packing Company in accordance with such provisions, and we cannot indulge in any presumption that such notice was given. [336] We are constrained to hold, therefore, that the plaintiffs were acting strictly within their legal rights under this contract at the time they made the tender for the balance of the undelivered brick on the contract price, and the defendant was not justified in then refusing delivery thereof as it did. It is undisputed that the market price at the time of the tender was-$6 per M. more than the contract price. It is conceded that there were 447,850 bricks undelivered. Their product, amounting to $2,687.10, together with interest thereon from May 20, 1920, measured the damages for which plaintiffs were entitled to judgment. This is the measure of damages under the statute (sub. 3, sec. 1684f— 67). Page Woven Wire F. Co. v. Staudenmayer, 174 Wis. 154, 182 N. W. 746. By the Court. — Judgment reversed, with directions to enter, judgment for the plaintiffs for $2,687.10, with interest from May 20, 1920. A motion for a rehearing was denied, with $25 costs, on March 14, 1922.