Delap v. Institute of America, Inc.

Decision Date01 July 1966
Citation31 Wis.2d 507,143 N.W.2d 476
PartiesDonald DE LAP, Respondent, v. INSTITUTE OF AMERICA, INC., a Wis. corporation, Appellant.
CourtWisconsin Supreme Court

John William Calhoun, Fond du Lac, for appellant.

Edgarton & Hobbs, Fond du Lac, for respondent.

HEFFERNAN, Justice.

This appeal presents three issues: (1) Whether the booklet covers that the defendant ordered printed by the plaintiff were of the proper size and properly scored for folding and binding; (2) whether the printing and related work was completed and in the quantitles contracted for; and (3) whether delivery was timely made.

The trial court made determinations in favor of the respondent on each of these issues: That the delivery of the covers, completed and delivered the work in the proper size, constituted doing the required work, and that a proof of the cover was approved by the defendant prior to furnishing the completed covers; that the plaintiff completed and delivered the work in the quantities ordered by the defendant; and that the materials were furnished to the defendant as soon as as feasible.

If these determinations are findings of fact, as they are denominated in the record, the question before us on appeal is simply whether these findings are contrary to the great weight and clear preponderance of the evidence. Acme Equip. Corp. v. Montgomery Co-op. C. Asso. (1966), 29 Wis.2d 355, 362, 138 N.W.2d 729; Kirchen v. Gottschalk (1965), 26 Wis.2d 123, 126, 131 N.W.2d 885; Hausmann v. Wittemann (1965), 26 Wis.2d 482, 485, 132 N.W.2d 537; Weed v. Lepianka (1966), 30 Wis.2d 198, 204, 140 N.W.2d 305. In addition, the evidence must be reviewed by this court from a standpoint most favorable to the respondent. Guinther v. Schucht (1965), 26 Wis.2d 97, 99, 131 N.W.2d 861; Columbia Stamping & Mfg. Co. v. Reich (1965), 28 Wis.2d 297, 301, 137 N.W.2d 45.

The appellant contends that these generally accepted rules are not applicable, apparently taking the view that since the exhibits are before us that this court is in a position to make the determination ab initio concerning the quality of the work performed. We have held that, in certain cases where the evidence is documentary, the appellate court is not bound by inferences drawn therefrom by the trial court. McCauley v. Tropic of Cancer (1963), 20 Wis.2d 134, 148, 121 N.W.2d 545. This view is, of course, predicated on the belief that when a question of fact is dependent upon understanding or interpretation of language this court is as able to draw an inference therefrom as the judge or jury who considered the matter at trial. In this case, however, the facts that the appellant would have us derive from the exhibits are not so uniquely in the area of expertise of the court that we can draw an unequivocal conclusion.

The appellant has invited our attention to defendant's exhibit 2 as undisputable proof that the book covers were not completed in a workmanlike manner. An examination of this exhibit bears out the defendant's contention that covers did not completely cover the lessons that are bound within them. He also asserts that the exhibit conclusively proves that the scoring was improper and that folds made upon the scored places would not result in a properly fitting booklet cover. An examination of the exhibit gives some credence to defendant's argument that the size and scoring of the covers failed to adequately fit the enclosed textual material. However, plaintiff's argument overlooks the oral evidence presented at trial. There was testimony presented which, if believed, would lead to the conclusion that exhibit 2 was improperly bound, that the cover was too loosely stapled, and that this accounted for the failure of the cover to extend to at least the edges of the enclosed material. Plaintiff also testified that the defendant had not followed the usual procedure of having the booklets trimmed after binding, which would result in having the covers and enclosed material of exactly the same size. Plaintiff testified that had the covers been glued rather than stapled that they would have fit properly. The plaintiff put in evidence exhibit 9, which purported to show that the covers as prepared by them, when properly trimmed, could be utilized to present a neat and workmanlike appearance. The defendant then introduced testimony in an attempt to show that plaintiff's exhibit 9 was not probative since the material bound was not the defendant's lesson plans, which lesson plans defendant contended could not be trimmed enough to fit...

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43 cases
  • State v. Rivest
    • United States
    • Wisconsin Supreme Court
    • 2 Marzo 1982
    ...this court is as capable of analyzing the record and making findings of fact as is the circuit court. Delap v. Institute of America, Inc., 31 Wis.2d 507, 510, 143 N.W.2d 476 (1966); Vogt, Inc. v. Int'l Brotherhood, 270 Wis. 315, 321i, 71 N.W.2d 359, 74 N.W.2d 749 (1955, rehearing 1956). I w......
  • State v. Bentley
    • United States
    • Wisconsin Supreme Court
    • 22 Mayo 1996
    ...prior cases which have applied a de novo standard of review when interpreting documents. See, e.g., Delap v. Institute of America, Inc., 31 Wis.2d 507, 510, 143 N.W.2d 476 (1966). We agree with the State that our standard of review is dictated by Nelson. In Nelson, this court stated the tes......
  • Schuetta v. Aurora Nat'l Life Assurance Co.
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • 8 Mayo 2014
    ...a benefit election form to his detriment.The issue of reasonable reliance is a question for trial, Delap v. Institute of America, Inc., 31 Wis.2d 507, 512, 143 N.W.2d 476 (1966), and the parties do not seem to dispute that Mr. Schuetta acted to his detriment by not filing the benefit electi......
  • Racine County v. Oracular Milwaukee, Inc.
    • United States
    • Wisconsin Supreme Court
    • 2 Abril 2010
    ...A reasonable time for performance is implied "where there is no provision as to the time for performance." Delap v. Inst. of Am., Inc., 31 Wis.2d 507, 512, 143 N.W.2d 476 (1966). In this case, the Agreement expressly states a project completion date. Whether that date was intended as a firm......
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