Wisconsin Auto Sales Co. v. Frint Motor Car Co.

Eschweeler, J. The court found and there is no dispute that plaintiff failed to give written or formal shipping or delivery directions on or before the 25th of each month for the quantity of cars or trucks that plaintiff could or would take during the succeeding month; the substantial [145] question here presented being whether or not the trial court was justified in finding that, by1 the course of dealing between the parties, there was a waiver by defendant of any failure by plaintiff to comply with the sixth clause, hereinafter set forth, of the two selling contracts. In arriving at the conclusion that there was such waiver the trial court expressly based it in part upon the course of conduct between the copartnership, plaintiff’s predecessor, and the defendant under similar written contracts preceding the ones of July, 1919. Such testimony was, we think, improperly received over defendant’s objection. No issue was here presented as to tire construction of the language of the contracts in the several provisions considered, for such provisions are plain and definite and oral evidence was not needed that they might be properly understood and applied. That under similar written contracts one party or the other thereto may have been willing to waive compliance with the plain letter of such prior or other contracts is not proper evidence in an action upon a present written contract to prove or tend to prove waiver of the express and plain provisions of such present contract. Proof of waiver here should therefore have been confined to only the conduct of the parties under the contracts here involved. State ex rel. News Pub. Co. v. Park, 166 Wis. 386, 165 N. W. 289; Follins v. Dill, 229 Mass. 321, 118 N. E. 644. We cannot deem such error, however, prejudicial in view of the fact that we find ample support in the testimony as to the conduct of the parties under the particular contracts here involved to support the trial court’s conclusion. The material provision in the auto and truck contracts, default as to which is relied upon by defendant as preventing plaintiff’s right to recover the additional discount, reads as follows: "Sixth. That the dealer will furnish the distributor on or before the twenty-fifth of each month definite shipping or [146] delivery instructions for the automobiles scheduled for the following month. In case -instructions are not so furnished, the distributor may make shipment of the automobiles scheduled for said month, or any portion thereof, to the dealer’s home place of business in any manner the distributor may elect. That all orders shall be filled by the distributor as rapidly as practicable, consistent with the estimated requirements given the distributor by the dealer, subject, however, to delays caused by strikes, fires, transportation difficulties, the requirements of other customers, or any other cause beyond the distributor’s control; and that the distributor, shall not be liable for any loss or damage from its failure to deliver goods as ordered.” In considering this provision it should be noted: First, that it does not expressly specify that the required notice shall be in writing, although plaintiff’s president, Mr. Haessly, who conducted most of the transactions between the parties, admitted in his testimony that he assumed that it did refer to written notices. Second, that it expressly gives to defendant the absolute right to deliver, and of course hold the plaintiff liable for payment therefor, the number of cars or trucks specified for each month. No claim is or can be made by defendant that plaintiff was under obligation to order or be compelled to .take more than the agreed estimate for any particular month. Third, that although it was in effect conceded by plaintiff that the requirement as to ordering the particular estimated number of cars for the months of December, January, February, and March was, on account of the nature of the automobile business in this part of the country, of greater practical importance to the defendant than during the other months, yet such particular importance is not to be' found in the letter of the contract. And finally, the express purpose of the additional discount agreement is to encourage and stimulate the sale of the cars and trucks during, the life of the two sales contracts, that [147] is, as a whole period and not for any particular part thereof, and it is found as a fact that there was a substantial compliance by plaintiff with the terms of the sales contract so' far as the total number of cars and trucks is concerned. While it is quite true that by some of the formal bulletins and direct communications sent by defendant and appearing in the above statement of facts direct reference was made to this requirement of orders by the 25th of each month, yet when we consider the entire course of dealing between the parties during the life of the contracts we cannot say that the conclusion of the trial court was unwarranted or unreasonable. So far as that the notice should be in writing, that was clearly waived by the continuous conduct of the defendant during the entire year. For the month of December, 1919, defendant expressly waived any question of breach by reason of its own inability to furnish cars or trucks. It appears that during the month of January the estimated requirements, in numbers at least, were taken by plaintiff. Defendant’s letter of January 30th above quoted and written subsequent, it should be noted, to the time when, under the letter of the contract, the February requirements should have been placed with defendant, suggests that plaintiff ascertain from its recognized sub-agents or sub-dealers within its allotted territory what can be done for the month of February, and this is followed by a letter from plaintiff setting forth the situation that then confronted it and its sub-dealers and why it could not receive cars or trucks. If this was not satisfactory to defendant it had the right to nevertheless ship to plaintiff the allotted number, and in this connection should be noted defendant’s letter of March 9th, supra, showing how very materially behind in its own schedule the factory was in this very month of February. And finally there is the fact, which appeals to us strongly as ground for supporting the conclusion of the trial court, [148] that defendant was, in equity and fair dealing, waiving any possible right it might have'had to rely upon any claim of breach, viz. that in February plaintiff ordered, and defendant accepted such order, as appears from its letter of March 5th, supra, the shipment to plaintiff of all cars that defendant could furnish and for which plaintiff would arrange to pay even though in storage. This order was evidently irrespective of the limitations as to the specified number of cars under the contract. Furthermore, not only is there no showing of actual damage to defendant by any failure by plaintiff to order or take cars or trucks during February, 1920, but by the letter of March 9th, set forth in the statement of facts, supra, the factory was materially behind in its own schedules for building, and evidently there was' no overstocking at the plant, the substantial thing, under defendant’s theory, this required prior ordering was aimed to prevent. So far, therefore, as the record here discloses, no injury resulted to defendant from any breach by plaintiff. It is also without dispute that at the end of the contract a new contract between the parties was negotiated and executed and in the meantime a statement was prepared by defendant from its records for plaintiff’s information as to the exact number of cars furnished to plaintiff and its sub-agents, and upon plaintiff’s examination of the same and finding substantial omissions the corrections to such statement made by plaintiff yrere accepted and retained for a time by defendant, and these were made only for the purpose of ascertaining the amount of additional discount to which plaintiff made claim. In view of the entire situation we are satisfied that the judgment is right and must be affirmed. By the Court. — Judgment affirmed.