Garton Toy Co. v. Buswell Lumber & Mfg. Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: BARNES
• Citation: Garton Toy Co. v. Buswell Lumber & Mfg. Co., 150 Wis. 341, 136 N.W. 147 (Wis. 1912)
• Decision Date: 14 May 1912
• Parties: GARTON TOY CO. v. BUSWELL LUMBER & MFG. CO.

150 Wis. 341

136 N.W. 147

GARTON TOY CO.

v.BUSWELL LUMBER & MFG. CO.

Supreme Court of Wisconsin.

May 14, 1912.

Appeal from Circuit Court, Sheboygan County; Michael Kirwan, Judge.

Action by the Garton Toy Company against the Buswell Lumber & Manufacturing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff is engaged in the business of manufacturing croquet balls, toys, and novelties, at Sheboygan, Wis. The defendant is engaged in the manufacture of lumber. On or about January 5, 1907, the president of the defendant corporation called upon the plaintiff at its office in Sheboygan and solicited an order for the purchase of some lumber. An agreement was reached, which was evidenced by the following memorandum signed in typewriting by the plaintiff, but not signed by the defendant: “Sheboygan, Wis. Jan. 5, 1907. Buswell Lumber & Mfg. Co., Minneapolis, Minn.--Please enter our order for 100 M. ft. of 4x4 maple to be cut a little wane or heart on corners so that it will turn off. And 65 M. ft. of 2 1/2 inch plank cut so as to be No. 2 and better with sound hearts, boxed or otherwise at $23.00 per M. f. o. b. Sheboygan. To be sawed this winter or early spring; shipped when in shipping condition. Terms net 60 days or 2% off for cash in 15 days from date of shipment. Garton Toy Co.”

One copy of this instrument was delivered to the defendant's representative and one was retained by the plaintiff. There is evidence tending to show that at the time of the making of this contract the defendant understood that the 4 x4 lumber mentioned in the memorandum was to be used in the manufacture of croquet balls, and that plaintiff could not use material that had wane or heart that would not be eliminated in the process of manufacture. On September 25, 1907, the plaintiff wrote the defendant as follows: “Please ship us immediately all of the 4x4 maple you have cut, as we want to get it piled more open so it will dry faster.” The defendant sent the following answer to this letter: “Sept. 27, 1907. Messrs. Garton Toy Co., Sheboygan, Wis.--Dear Sirs: We are in receipt of your favor of the 25th inst., in which you ask us to begin shipments on your maple, and we have advised our mill to ship you one car at once, and will arrange to ship you more as we accumulate the stock from time to time that is in fair shipping condition. Desire to say with reference to your contract we find there is no specified date for completion of the contract and advise you therefore that owing to the fact that we have been able to run our mill only one shift, on account of shortage of labor, we have not been able to produce as much on the contract as we had expected to do, and it looks now as though it would take us several months to complete your contract. We expect to be able to give you all that is called for on the contract, but it will take us, as stated, a longer time than the writer had anticipated. The writer desires very much to have a mutual understanding so that we can lay our plans to mutual advantage. I should say that it will take us four or five months, at least, to get out your orders unless we are able to run our mill a double shift. Kindly let us hear from you if you have any suggestions to offer as to the delivery of the stock. Respectfully yours, Buswell Lbr. & Mfg. Co., F. W. Buswell.”

Under date of October 4th the defendant invoiced a car load of lumber to the plaintiff, which contained 9,598 feet in the aggregate, of which amount 2,080 feet was 4x4 lumber. On October 8, 1907, plaintiff acknowledged receipt of the invoice and stated: “According to our contract this maple was to have been sawed last winter or early last spring, and shipped when in shipping condition. Accordingly the lumber should all of it be in perfect shipping condition at the present time, and we certainly must have all of it in our yard before the first of January, or it will very seriously cripple our croquet business. Please advise us by return mail just how much of this stock you have ready to ship now.”

A number of letters passed between the parties between this date and December 9th. In the letters written by the plaintiff it insisted that the 4x4 should have been manufactured during the winter and early spring, and that defendant should fulfill its contract. On the part of the defendant it was stated that it was disappointed in not being able to run its mill night and day, and reference was made to the small amount of maple logs which it had, and, while generally expressing a willingness to supply the lumber contracted for, it stated that it could not do so for a very considerable period of time. The defendant was informed that, unless it furnished the lumber, plaintiff would be obliged to go into the open market and buy other lumber to take its place, and would hold the defendant responsible for the difference in price. On December 7th the plaintiff refused to pay for the car load of lumber delivered because the defendant had breached its contract. On December 9th the defendant wrote plaintiff as follows: “We have been sawing on your order and have some of the stock on hand, but will be compelled to cease sawing on your contract unless you will agree to promptly pay for the car which we have shipped you and which is now past due, and waive all claim for damages on account of alleged delay in making shipments. If you accept our terms we will make an especialeffort to get the stock out for you, if not, we will be compelled by your action to cancel contract and proceed to collect for the car which is now shipped and past due.” This letter ended the correspondence between the parties. The plaintiff purchased other lumber on the market from time to time to take the place of that contracted for, to the amount of 110,380 feet. It was unable to secure maple of the desired quality sawed into 4x4 dimensions, so it was obliged to take dimensions wider than 4 inches, upon which there was considerable waste. Plaintiff brought this action to recover the damages which it sustained by reason of the breach of the contract. The defendant denied liability and counterclaimed for the purchase price of the car load of lumber shipped.

The jury returned the following special verdict: “First question: During all of the period which constituted a reasonable time for the delivery of the lumber described in the contract in suit which was made by plaintiff with defendant, was plaintiff ready and willing to receive all of that lumber under the contract? Answer: Yes. Second question: If the answer to the first question be ‘yes,’ then answer this: Did defendant fail to furnish to plaintiff within such reasonable time the 4x4 inch maple lumber, or so-called ‘squares,’ mentioned in the contract, excepting only 2,000 feet thereof? Answer: Yes. Third question: If the answer to the second question be ‘yes,’ then answer this: Because of such failure on defendant's part, and in order that plaintiff might be able to carry on its business of manufacturing croquet balls, was plaintiff compelled to purchase in the market other lumber to take the place of the 4-inch lumber which defendant agreed to furnish to plaintiff under said contract? Answer: Yes. Fourth question: If the answer to the third question be ‘yes,’ then answer this: At the times when plaintiff purchased 4-inch planks to take the place of the ‘squares' which defendant failed to furnish, what was the market value per 1,000 feet, delivered on board cars at Sheboygan, Wis., freight charges prepaid by the seller, of 4-inch planks corresponding as nearly to, and not falling below the requirement of, the contract in suit as to the quality or grade of 4x4 inch lumber to be delivered thereunder as by reasonable effort could then be purchased in the market, and which was suitable for the manufacture therefrom of croquet balls? Answer: $30.76 per 1,000 feet. Fifth question: What quantity of the planks described in the fourth question would be required for the purpose of manufacturing therefrom substantially the same number of croquet balls as could be made from 98,000 feet of the maple squares which defendant agreed to furnish under the contract? Answer: 130,660 feet. Sixth question: What would be the quantity and market value of the waste material resulting from manufacturing into squares the quantity of the planks specified in your answer to the fifth question? Answer: 32,660 feet of waste at $15 per 1,000 feet, of a total value of $489.90. Seventh question: What would be the reasonable value of sawing into the so-called 4-inch by 4-inch squares the quantity of the planks specified in your answer to the fifth question? Answer: $2 per 1,000 feet. Eighth question: Could plaintiff, by the exercise of reasonable effort and diligence, have purchased in the market in the fall of 1907 and the winter and spring of 1908 4-inch by 4-inch maple squares suitable then for the manufacture therefrom of croquet balls? Answer: Yes. Ninth question: If the answer to the eighth question be ‘yes,’ then answer this: At that time, what quantity not exceeding 98,000 feet, and what grade or grades of such squares, could plaintiff have so found for sale in the market? Answer: 14,880 feet, of the grade of first and second clear. Tenth question: What quantity of such squares, of the grade or grades specified in your answer to the ninth question, would be required for the purpose of manufacturing therefrom substantially the same number of croquet balls as could be made from 98,000 feet of the maple squares which defendant agreed to furnish under the contract? Answer: 98,000 feet. Eleventh question: At the time stated in the eighth question, what was the market value per 1,000 feet, delivered on board of cars at Sheboygan, Wis., freight charges prepaid by the seller, of 4-inch by 4-inch maple squares of the grade or grades specified in your answer to the ninth question? Answer: $43 per 1,000 feet.”

Upon this verdict...