Hanz Trucking, Inc. v. Harris Bros. Co., Crestline Division

• Decision Date: 03 December 1965
• Citation: 138 N.W.2d 238,29 Wis.2d 254
• Parties: HANZ TRUCKING, INC., a Wis. corporation, Respondent, v. HARRIS BROTHERS CO., CRESTLINE DIVISION, an Ill. corporation, Appellant.
• Court: Wisconsin Supreme Court

Page 238

138 N.W.2d 238

29 Wis.2d 254

HANZ TRUCKING, INC., a Wis. corporation, Respondent, v. HARRIS BROTHERS CO., CRESTLINE DIVISION, an Ill.

corporation, Appellant.

Supreme Court of Wisconsin.

Dec. 3, 1965.

Smith, Puchner, Tinkham & Smith, Wausau, for appellant.

Crooks & Crooks, Wausau, for respondent.

BEILFUSS, Justice.

The issues raised are as follows:

(1) Is the minimum mileage provision of the contract ambiguous?

(2) Did retention of the check constitute an accord and satisfaction?

(3) Did the failure of plaintiff to bill on a monthly minimum basis constitute either waiver or estoppel?

(4) Has plaintiff established damages awarded by the trial court?

The trial court permitted parol testimony to be received in evidence at the trial, over the objection of Hanz, as an aid in interpreting and construing the disputed minimum mileage provision of the contract. The disputed language is 'subject to a minimum of four thousand five hundred (4500) miles per month.' (The 1962 contract provided for 5,500 miles per month.)

While there may be some question as to whether the language of the challenged clause, given its common and ordinary meaning, can admit of more than one interpretation, ¹ the trial court did receive the offered parol testimony and then found no ambiguity existed. The respondent Hanz does not on appeal challenge the trial court ruling admitting the parol evidence but contends that the finding of no ambiguity by the trial court is not against the great weight and clear preponderance of the evidence and cannot, therefore, be disturbed on appeal.

We deem the trial court properly received the parol testimony as an aid in determining whether ambiguity existed in the language of the contract.

'3 Williston, Contracts (rev. ed.), pp. 1807, 1808, sec. 629, suggests that the test, of whether a written contract is so unambiguous as not to render admissible any testimony of surrounding circumstances, is dependent on whether the words used are so clear that the offered evidence 'would not persuade any reasonable man that the writing meant anything other than the normal meaning of its words would indicate.' The author quotes with approval the following statement made by Judge Learned Hand in Eustis Mining Co. v. Beer, Sondheimer & Co. (D.C.1917), 239 Fed. 976, 985:

"All the attendant facts constituting the setting of a contract are admissible so long as they are helpful; the extent of their assistance depends upon the different meanings which the language itself will let in. Hence we may say, truly perhaps, that, if the language is not ambiguous, no evidence is admissible, meaning no more than that it could not control the sense, if we did let it in; indeed, it might 'contradict' the contract--that is, the actual words should be remembered to have a higher probative value, when explicit, than can safely be drawn by inference from surroundings. Yet, as all language will bear some different meanings, some evidence is always admissible; the line of exclusion depends on how far the words will stretch, and how alien is the intent they are asked to include.'

'Professor Corbin, in his recent excellent work on the law of contracts, states (3 Corbin, Contracts, p. 70, sec. 542):

"There are, indeed, a good many cases holding that the words of a writing are too 'plain and clear' to justify the admission of parol evidence as to their interpretation. In other cases, it is said that such testimony is admissible only when the words of the writing are themselves 'ambiguous.' Such statements assume a uniformity and certainty in the meaning of language that do not in fact exist; they should be subjected to constant attack and disapproval.' (Emphasis supplied.)

'Among the surrounding circumstances that are admissible for the purpose of interpreting the language of a contract are the 'acts and statements of the parties antecedent to and contemporaneous with the making of the contract.' 3 Corbin, Contracts, p. 72, sec. 543.' Georgiades v. Glickman (1956), 272 Wis. 257, 264, 265, 75 N.W.2d 573. ²

In the instant case the parol testimony dealt primarily with acts and statements antecedent to and contemporaneous with the making of the 1962 and 1963 contracts.

The trial court considered the language of the contract, namely the minimum miles 'per month' and the testimony offered by both sides as to what they understood and agreed upon, and that fact that Hanz had not billed Crestline on a minimum monthly basis. The testimony was in conflict in some respects and more than one inference could be drawn from some of the undisputed facts. In the memorandum opinion filed by the trial judge, he stated: 'The court would like to point out further that it has re-read the testimony of both Mr. Hamers and Mr. Kabella, and save for in one or two instances, the court believes that although these men may have been of the impression that the agreement should be computed on an annual basis, the court does not believe that this was definitely conveyed to or agreed upon by the plaintiff, as is borne out by their testimony in this regard. The court felt Mr. Kabella to have been somewhat evasive in his testimony concerning whether or not there actually was conversation between he and Hanz's as to how the rental should be computed.' The court concluded: '* * * this court believes that the proper interpretation of the agreement is that the agreement means just what it says, that the miles should be computed on a monthly basis and that if the vehicles are not driven 7,200 miles per month, that the plaintiff should be paid for 7,200 miles at 22cents per mile per month.'

The weight of the testimony and the credibility of the witness are primarily for the trial court; further, where more than one reasonably inference can be drawn from the credible evidence we must accept the one drawn by the trier of the fact.

We conclude that the trial court's finding that Hanz had not agreed to an annual minimum mileage and that the contract entered into by the parties providing for monthly minimum mileage 'means just what it says,' are not against the great weight and clear preponderance of the credible evidence and cannot, therefore, be set aside upon appellate review.

Crestline contends that Hanz is not entitlted to a recovery by virtue of the doctrine of accord and satisfaction. After Crestline gave notice in April of 1964 that it would not renew that contract, Hanz billed Crestline for the amounts due under the 1962 and 1963 contracts, including monthly minimum charges over and above actual mileage for four months for each year covered by the 1962 and 1963 contracts. Crestline deducted the amounts claimed for more than the actual mileage and sent Hanz a check with a notation that it was payment in full. This check was dated June 26, 1964. Hanz received the check and held it through the time of suit, August 13, 1964, the time of trial, December 11, 1964, and it remains uncashed and part of the record at this time.

'A creditor to whom remittance is made as payment in full of an unliquidated or disputed claim has the option either of accepting it upon the condition on which it was sent or of rejecting it, and if it clearly appears that the remittance was sent upon the condition that it be accepted in full satisfaction, then failure to rejuect it will result in an accord and satisfaction.' 1 Am.Jur. (2d), Accord and Satisfaction, p. 315, sec. 18.

So far as holding a check is concerned, it is said:

'Where a creditor receives a check from his debtor containing the words 'payment in full,' 'final settlement,' or other words of similar import, it is his duty to repudiate the offer and return the check or money remitted within a reasonable time after it is received if he does not care to receive it in full discharge of the indebtedness.' 1 Am.Jur. (2d), Accord and Satisfaction, p. 321, sec. 23. See also 6 Williston, Contracts (rev. ed.), pp. 5213-5216, sec. 1854.

Anno., 13 A.L.R.2d 736, considers cases where a check is received and not cashed or otherwise used. Cases holding that retention of a check for a particular length of time is unreasonable are: Curran v. Bray Wood Heel Co., Inc. (1949), 116 Vt. 21, 68 A.2d 712, 13 A.L.R.2d 728 [16 months before suit and three months after]; Seidman v. Chicago Eye Shield Co. (1932), 267 Ill.App. 77 [over six years]; Day-Luellwitz Lumber Co. v. Serrell (1913), 177 Ill.App. 30 [bank draft held three and one-half months]; Donovan v. Maloney (1912, Del.) 3 Boyce 453, 84 A. 1032 [six months]; Warren v. New York Life Ins. Co. (1936), 40 N.Mex. 253, 58 P.2d 1175 [six months]; Bloomquist v. Johnson (1903), 107 Ill.App. 154 [held a 'few' weeks]; Baggett v. Chavous (1963), 107 Ga.App. 642, 131 S.E.2d 109 [twenty-two months].

Cases which have held the retention not unreasonable or for the jury are: Siegel v. Cohen (1918), 210 Ill.App. 338 [12 days]; Patten v. Lynett (1909), 133 App.Div. 746, 118 N.Y.S. 185 [one check about a month and another about six weeks]; Ameican Nat.Bank v. Bradford (1945), 28 Tenn.App. 239, 188 S.W.2d 971 [three months]; Meier v. Texas Co. (D.C.Pa.), 168 F.Supp. 119 [seven months]; Chesapeake Industries, Inc. v. Brandt (1954) (Misc.), 137 N.Y.S.2d 195 [five months].

One Wisconsin case, Frank v. Forst (1919), 170 Wis. 353, 174 N.W. 911, held that retention of a check three months before tendering it back did not constitute an accord and satisfaction. On the basis of these cases it appears that holding a check from June 26 to August 13, or even until December 11, would not constitute an unreasonable time as a matter of law. Once suit was started on August 13, it became clear that Hanz had not accepted the check on the terms under which it was presented. Thus, for purposes of this doctrine, Hanz has held the check only about six weeks. Thus we agree that retention of the uncashed check under the circumstances of this case did not constitute an accord and satisfaction.

Crestline next contends...