Estey Organ Co. v. Lehman

• Decision Date: 21 May 1907
• Citation: 132 Wis. 144,111 N.W. 1097
• Court: Wisconsin Supreme Court
• Parties: ESTEY ORGAN CO. v. A. & E. LEHMAN.

132 Wis. 144

111 N.W. 1097

ESTEY ORGAN CO.

v.A. & E. LEHMAN.

Supreme Court of Wisconsin.

May 21, 1907.

Appeal from Circuit Court, Brown County; Samuel D. Hastings, Judge.

Action by the Estey Organ Company against A. & E. Lehman. From a judgment for plaintiff, defendants appeal. Affirmed.

This action was brought to recover the price of an organ and motor. The original complaint alleged the sale and delivery at Houghton, Mich., on or about February 1, 1904, for the agreed price of $2,401.05. The defendants answered, admitting that they purchased from plaintiff an organ and motor, and denying all other allegations of the complaint, and further alleging that the agreed price was $1,750. Defendants also set up several counterclaims for damages on account of breaches of warranty in organs in failure to properly furnish music. Plaintiff replied to the counterclaims, denying the allegations thereof. At the close of the plaintiff's evidence, and after motion for nonsuit by defendants, the court permitted plaintiff to amend its complaint by inserting, in effect, that the plaintiff shipped and delivered to the defendant, pursuant to order, at Houghton, Mich., on or about February 12, 1904, the organ and motor, and that prior to that date plaintiff informed defendants that the price was $2,401.05, and that defendants accepted said property knowing the price, and agreed to pay said sum of $2,401.05. The jury found as follows: “Did E. C. Hall, assuming to act for the plaintiff, and Eugene Lehman, acting for the defendant, contract for the sale by the plaintiff to the defendant of the organ to recover the price of which this action is brought for the sum of $1,750? A. No. If your answer to the first question should be ‘No,’ then answer this: Had said plaintiff prior to receiving said defendants' order for said organ informed said defendants that its price for such organ was $1,750? A. No. Was said organ when delivered by said plaintiff on the cars capable of producing music automatically, if kept in a proper place and properly used? A. Yes. Was the ‘Pierce’ organ when delivered by the plaintiff on the cars capable of producing music automatically if kept in a proper place and properly used? A. Yes. Was the ‘Schwartz’ organ, when the plaintiff delivered the same on the cars, capable of producing music automatically if kept in a proper place and properly used? A. Yes.” Several months after trial, and upon motion by plaintiff, it was permitted to further amend the complaint, which amendment is unnecessary to consider. Judgment was rendered for plaintiff for the sum of $2,401.05, from which this appeal was taken.Minahan & Minahan, for appellants.

Cady & Strehlow, for respondent.

KERWIN, J. (after stating the facts).

The assignments of error discussed by appellant may be treated under the following heads: (1) Denial of defendants' motion for nonsuit, directed verdict, and judgment notwithstanding the verdict. (2) Order of April 28, 1906, allowing amendment to complaint. (3) Errors in the admission and exclusion of evidence. (4) Order denying new trial. The defendants claimed an agreement to purchase the organ and motor at $1,750, and this question was found against them by the jury. The jury also found against defendants upon the counterclaims. Aside from the facts found by the jury, there is but little dispute upon the facts. We also have in the record a very able and exhaustive opinion of the circuit judge treating the facts and law of the case, in which he finds that the plaintiff is entitled to judgment for the amount claimed.

1. The three assignments of error, refusal of nonsuit, refusal to direct a verdict for defendant, and denial of motion for judgment for defendant on the verdict, are considered together by appellant. They involve the main controversy in the case, namely, whether upon the evidence and the verdict the plaintiff was entitled to judgment. The purchase of the organ and motor was made by correspondence, and it is established that no price was agreed upon, nor time of delivery fixed upon in such correspondence. It is also established by the evidence that defendants expected to get the organ for $1,750, while the plaintiff expected to get $2,300 for it, and understood it was selling it for that price, which was the regular selling price. It is therefore apparent that the minds of the parties never met upon the price before delivery of the organ. It is strenuously insisted, however, by counsel for appellant that where no price is agreed upon the law will imply one. The argument of counsel would have great force, if there was no misunderstanding as to price. But, where no price is agreed upon and there is a misunderstanding as to price, one party understanding it to be one sum and the other another, the doctrine invoked by counsel for appellant cannot apply. There being a clear misunderstanding as to price, the contract of sale was not complete until the price was agreed upon; and the law could not imply a price contrary to the understanding of the parties. Harran v. Foley, 62 Wis. 584, 22 N. W. 837;Rupley et al. v. Daggett, 74 Ill. 351. We think it clear that the doctrine that the law will imply the parties intended a reasonable price where no price is agreed upon cannot apply to the case before us. The organ ordered was one of the style and size that plaintiff sold for $2,300. The organ was shipped on January 22, 1904. On January 25th, plaintiff mailed a letter, inclosing an invoice of the price, $2,300 for the organ, and the balance $101.05 for the motor, making $2,401.05, the amount sued for. The defendants received this letter January 30, 1904, and replied to it the same day, stating that the plaintiff had...