Behling v. Rock County Sugar Co.

Rosenberry, J. The principal error assigned in this case is that the court erred in admitting testimony as to the oral stipulation and agreements made between the parties prior to and contemporaneously with the making of the written contract. The findings of fact are skilfully drawn to evade this issue. The court found that during the negotiations and at the time of the signing of the agreement the defendant’s representatives “advised” plaintiff that he would be permitted to begin harvesting and delivering beets about the 25th day of the following September or the 1st day of October, and that, relying upon defendant’s exercise of its right to direct the time for the beginning of the harvesting and delivery of the beets thus made, the plaintiff entered into [100] said agreement. We are not enlightened as to how or in what manner a party may exercise a right conferred upon him by a contract not yet made; or how a conclusive election may be made under a stipulated option which has no existence until the contract is signed. Calling a contemporaneous oral agrément “advice” does not alter its essential legal character. The established rules of law cannot be evaded in that way. The court does not find that the right to designate the time and quantity of deliveries to be made under the contract was exercised after it was made. Nothing is clearer than that the finding made by the trial court is in legal effect a finding that the terms of the written contract were varied by oral stipulation made prior to or contemporaneously with the signing of the contract and in clear contradiction of its terms. ... This matter was thoroughly considered and reviewed in Derbeck v. Albright, 186 Wis. 515, 203 N. W. 337 (decided April 7, 1925). With the evidence relating to the so-called “advice” given by defendant’s agents at the time of the negotiations and the making of the contract out of the case, we find nothing which sustains the conclusion of the trial court that the defendant exercised its right to direct the time for beginning the harvesting and shipping of the beets unreasonably and arbitrarily. On the contrary, the evidence discloses that the defendant acted with diligence and discretion, did everything in its power to aid the plaintiff in making-delivery of the beets, slowed down its factory at the end of its so-called campaign in order that the beets might be re-céived, and otherwise evidenced its good faith in carrying out the contract. By the terms of the contract the plaintiff was only to receive payment-for the beets suitable for the making of sugar actually delivered upon cars. Plaving failed to perform the contract, plaintiff is not entitled to recover from the defendant. The plaintiff no doubt sustained a heavy loss. It appears quite clearly that this loss was due to unfavorable weather conditions, but that was a hazard which the plaintiff and not the defendant assumed. [101] Reference is also made in the findings of the court to, the fact that the defendant failed to provide cars for loading until October 26th. The contract provides that the seller shall raise twenty-two acres of sugar beets and “deliver them to the Rock County Sugar Company f. o. b. cars at grower’s shipping station.” There being nothing in the contract to indicate to the contrary, it was the duty of the seller to furnish the cars at his own expense. Vogt v. Schienebeck, 122 Wis. 491, 100 N. W. 820; Hurst v. Altamont Mfg. Co. 73 Kan. 422, 85 Pac. 551, 6 L. R. A. n. s. 928; R. J. Menz L. Co. v. E. J. McNeeley & Co. 58 Wash. 223, 108 Pac. 621, 28 L. R. A. n. s. 1007; Culp v. Sandoval, 22 New Mex. 71, 159 Pac. 956, L. R. A. 1917A, 1157. The company being under no obligation to furnish cars, there could be no breach of its contract in that respect. By the Court. — Judgment is reversed, and cause remanded with directions to dismiss the plaintiff’s complaint.