Golden v. Meier

• Decision Date: 17 April 1906
• Parties: GOLDEN ET AL. v. MEIER ET AL.
• Court: Wisconsin Supreme Court

129 Wis. 14

107 N.W. 27

GOLDEN ET AL.

v.MEIER ET AL.^a1

Supreme Court of Wisconsin.

April 17, 1906.

Appeal from Circuit Court, Pierce County; E. W. Helms, Judge.

Action by J. J. Golden and another against August Meier and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

This action was brought to recover damages for breach of the following alleged contract: “Know all men by these presents: That we, the undersigned, whose names are hereto subscribed, all of the county of Pierce and state of Wisconsin, do hereby associate ourselves together as a co-operative association under the name of the Prescott Creamery Association, for the purpose of manufacturing our butter at actual cost. It is agreed that the place of business or creamery plant proposed to be erected shall be located at or near Prescott, Wisconsin. It is further agreed in consideration of the mutual benefits herein agreed by and between the members of said association and whose names are hereto subscribed as parties of the first part, and Golden and Tobias as parties of the second part, as follows, to wit: It is hereby agreed by and between the parties of the first part and the parties of the second part that the parties of the first part shall consist of not less than thirty-three members, whose names shall be subscribed hereto, before this agreement shall become operative and take affect upon either party. The parties of the first part agree to furnish free of charge sufficient land for a suitable location, and reasonably level, on which the creamery building shall be erected, and said first party shall also furnish free of charge on the creamery grounds aforesaid a sufficient well of good, pure water. Said ground shall be furnished said second parties on or before the 1st day of April, 1904, so as not to delay the erection of said creamery. And it is agreed that the parties of the second part shall build, equip, and complete for said parties of the first part on or before the 1st day of June, 1904, a creamery plant on said location aforesaid, as per plans and specifications and list of machinery and appliances hereto attached, for the consideration of thirty-three hundred dollars, which said sum of thirty-three hundred dollars the parties of the first part hereby covenant and agree to pay said parties of the second part, their heirs or assigns, with interest from June 1st, 1904, at 6 per cent. per annum as follows, to wit: $1,100.00 January 1st, 1905. $1,100.00 January 1st, 1906. $1,100.00 January 1st, 1907. It is further agreed that the parties of the first part shall appoint a president and secretary to act as said association's representatives in looking after the erection of said creamery plant and whose duty it shall be to accept said creamery plant for said parties of the first part, upon notice in writing to them by said second parties of the completion of said plant, and should said representatives aforesaid fail to notify said parties of the second part in writing of the acceptance by them of said creamery plant as herein mentioned within six days after the second party gives them notice of the conmpletion of said plant, the same shall stand accepted without any further act.”

The complaint sets up the contract and alleges that defendants were copartners and failed to perform on their part, and refused to permit plaintiffs to perform in consequence of which they sustained $1,225 damages. The answer specificially denies that defendants were partners, and alleges that at the time each respondent affixed his signature to the written agreement it was specially agreed that said agreement was not to become binding or effective for any purpose until the appellants had obtained from the signers of such agreement a pledge in writing to furnish for the use of the creamery when erected the milk from 250 to 350 cows, and that the appellants wholly failed to obtain such pledge, and that the respondents signed the instrument relying upon the agreement that such contract would not become effective or of any binding force until the appellants had obtained such pledge, and that it was well understood between appellants and respondents that such creamery could not be run so as to pay expenses with less than the number of cows specified. The answer contained other defenses not necessary to state. The case was tried by the court and a jury, and a special verdict returned to the effect that at the time the contract was signed and delivered to the plaintiffs by 25 of the defendants there was an agreement between them and the plaintiffs that such contract should not become binding upon such defendants until agreements were obtained from various individuals to furnish in the aggregate the product of at least between 250 and 350 cows to the proposed creamery. Motions were made by plaintiffs to set aside the answers to the questions and for judgment notwithstanding the verdict, and the defendants moved for judgment on the verdict. Plaintiffs' motions were denied and defendants granted, and judgment entered in favor of the defendants and against the plaintiffs dismissing the complaint, from which this appeal was taken.Thos. M. Casey, for appellants.

F. M. White, for respondents.

KERWIN, J. (after stating the facts).

The only question necessary to consider on this appeal is, whether evidence was properly admitted to show that it was agreed at the time respondents, or some of them, affixed their signatures to the written agreement that it should not become binding or effective for any purpose until the plaintiffs had obtained from the signers of such agreement a pledge in writing to furnish for the use of the creamery mentioned in the agreement, when...