Davis-Watkins Dairymen's Manufacturing Co. v. Cronin Dairy & Ice Cream Co.

Esciiwkiler, J. Upon the trial plaintiff offered no evidence tending to excuse the delay from August 2, 1920, to March 2, 1921, for the shipment of the special order of bottles under the contract of August 2d and which were by its terms to be for immediate shipment. One of defendant’s officers and the only witness on the trial testified that the customary period for the making and delivery of such glass lettered bottles was from thirty days to six weeks, and on cross-examination by plaintiff’s counsel testified that orders for such goods for immediate shipment meant within six weeks at the latest. Plaintiff offered no evidence as to when the order was placed by it for this particular lot; the necessary length of time it would take to manufacture; or whether or not this particular order was, as a matter of fact, manufactured or in process of manufacture at the time that plaintiff received notice of cancellation of all orders by the letter of February 23d, supra; the mere recitals in plaintiff’s letters of December 23d and February 23d, supra, not being, of course, proper evidence of the existence of the alleged facts recited in such correspondence. Although the complaint referred to a sale and delivery- on March 2, 1921, the date of shipment, nevertheless such sale must be based upon the written accepted order of August 2, [111] 1920, under the Uniform Sales Act, sub. 2, sec. 1684t — 4, Stats. 1919, now sec. 121.04, Stats. So much of that contract as is here concerned clearly contemplated things not then in existence and was therefore for articles within the definition of “future goods” under the Uniform Sales Act, sec. 1684i — 5, Laws 1919, now sec. 121.05. There is no evidence to support a conclusion that there was prior to the shipment any such unconditional appropriation of the bottles to the contract by either party sufficient to pass title thereto under then sub. 1, sec. 1684i — 4, now sec. 121.19 (4) (a), prior to the cancellation order of February 22d. It is apparent, therefore, that so far as any right of action by plaintiff can be properly asserted on the basis of an alleged completed contract of sale and consequent liability by the defendant for the purchase price, it must be determined by the situation as presented on March 2d, the time of the delivery of the goods to the railroad company, and the time asserted in the complaint. By the written contract of August 2d these bottles were for immediate shipment. Such an express provision can be no less stringent as a condition binding the seller to promptly deliver than would follow under the Uniform Sales Act were the contract silent in such respect, and by sub. 2, sec. 1684i — 43, Stats. 1919, now sub. (2), sec. 121.43, the seller is bound to send such goods within a reasonable time. Under the uncontradicted testimony a reasonable and customary period within which such articles should be shipped after the time of contract was at the outside six weeks. The plaintiff’s letter of December 23d, supra, admitting that the articles were not then ready to be delivered pursuant to the contract, was written at a time long after the period within which, under the contract, statute, and testimony, the goods should have been shipped. Conceding for present purposes that the silence of defendant after its receipt of the December 23d letter was a waiver of the then delay, never [112] theless the plaintiff would be bound under the law to have the goods sent within a reasonable time thereafter. This the plaintiff did not do, under the uncontradicted testimony, and was clearly in default on its part at the time it received the written notice of cancellation on February 23d. Furthermore, there is no evidence that at such time even the articles were in process of manufacture, and besides, for all the record discloses, the manufacture and preparation for shipment may have all been done after February 23d. The defendant, therefore, had the right on February 22d to cancel the order as it did so far as relieving itself of any further obligation to receive the goods or pay the contract purchase price. The plaintiff here had the burden of showing under the contract of August 2d substantial performance by delivery or shipment within a reasonable time, and it failed to meet such burden and offered no evidence which establishes a legal excuse for such delay. The plaintiff therefore failed to establish a cause of action for the purchase price of the goods or the demurrage paid by it upon the same, and the complaint should have been dismissed. Howard & Foster Co. v. Cummins, 179 Wis. 354, 191 N. W. 501. The subsequent transactions between the parties amounted to no more than negotiations for a settlement of the matter between them and there was no meeting of the minds on any definite proposition in that regard. By the Court.- — Judgment reversed, and cause remanded with directions to dismiss the complaint.