Hoffmann v. Maffioli

• Decision Date: 24 November 1899
• Citation: 80 N.W. 1032,104 Wis. 630
• Parties: HOFFMANN v. MAFFIOLI.
• Court: Wisconsin Supreme Court

104 Wis. 630

80 N.W. 1032

HOFFMANN

v.MAFFIOLI.

Supreme Court of Wisconsin.

Nov. 24, 1899.

Appeal from Waukesha county court; M. S. Griswold, Judge.

Action by Willibald Hoffmann against G. Maffioli. From a judgment for plaintiff, defendant appeals. Affirmed.

Marshall and Bardeen, JJ., dissenting.

Clasen & Walsh, for appellant.

Ryan & Merton, for respondent.

CASSODAY, C. J.

This action was commenced June 28, 1898, to recover $2,888, with interest from June 16, 1898, on account for goods, wares, and merchandise sold and delivered by the plaintiff, doing business under the name of The Waukesha Stone & Quarry Company, to the defendant, between April 23, 1898, and June 16, 1898, at the agreed price, and which were reasonably worth the sum stated, all of which became due and payable June 16, 1898. The defendant answered by way of admissions and denials, and also alleged by way of counterclaim, in effect: That the defendant was a principal contractor engaged in macadamizing and paving streets, April 15, 1898, and as such principal contractor he entered into a contract with the city of Waukesha for the concreting and paving of the whole of East Main street in that city. That April 21, 1898, he, in the name of the Waukesha Stone & Quarry Company, submitted a written proposal to the defendant in the words and figures following, to wit: “Waukesha, Wis., April 21, 1898. To Mr. G. Maffioli--Dear Sir: We propose to furnish crushed stone at 85c. per yard of 2,500 lbs., 30 in. x 4 in. curbing, including corners at 34c. per lineal foot, protection curb 15 in. x 4 in. at 10c. per lineal foot, all as per specifications. Delivered on street in the city of Waukesha in such quantities as may be desired. Respectfully submitted, The Waukesha Stone and Quarry Co., per Ph. Kiehl, Mngr.” That such proposal was duly accepted in writing, written thereunder by the defendant, May 4, 1898, as follows: “Accepted May 4, 1898. G. Maffioli.” That the plaintiff had neglected and failed to perform such agreement on his part, in that he misrepresented the actual measurement and weight of stone delivered to the defendant. That it was ascertained by accurate tests made May 30, 1898, that of three or four loads of crushed stone so delivered by the plaintiff to the defendant, and at different times, were less in weight by 50, 300, and 500 pounds, respectively, than was represented by tickets or scale receipts delivered by the plaintiff to the defendant. That the defendant had reason to believe. and did believe, that every load of crushed stone delivered to the defendant by the plaintiff was far less in weight and measurement than represented and charged by him. That the plaintiff absolutely refused to examine or correct the shortage mentioned, and refused to furnish and deliver any further crushed stone or curbing to the defendant, and continued to so refuse. That by reason of such failure, fault, and neglect on the part of the plaintiff the defendant was actually and necessarily hindered and delayed in executing and completing his paving contract, and suffered and sustained great loss of time and damage with his hired men and otherwise to the amount of $1,500. And the answer contained a further counterclaim to the effect that on account of the plaintiff's failure and neglect to furnish crushed stone and curbing as stated the defendant necessarily incurred other and further expenses in order to complete his paving contract, in that he was compelled to, and actually did, procure and purchase such crushed stone and curbing elsewhere, at greatly enhanced prices, to his damage in the sum of $1,000. The plaintiff, by way of reply, admitted the written contract, but denied all other allegations in the respective counterclaims. At the close of the trial the jury returned a verdict in favor of the plaintiff, and assessed his damages at $2,957.58. From the judgment entered thereon the defendant brings this appeal.

There is no dispute but what the plaintiff actually delivered the amount of curbing which he claims to have delivered, nor that he furnished three car loads of crushed stone, which the defendant shipped to Rockford, Ill.; nor that the stone so delivered at the contract price amounted to $1,836.22. There is, however, a considerable dispute as to the amount of crushed stone delivered by the plaintiff to the defendant on the street in Waukesha. It appears that with each load of crushed stone so delivered, the plaintiff furnished to the defendant. or to his superintendent, a ticket or memorandum of the weight of the load by the plaintiff's scales. The defendant gave evidence tending to prove that by actual tests on other scales the aggregate weight of three of the loads so delivered was several hundred pounds less than the weight represented by such tickets or memoranda. The defendant only made such tests as to three loads. On the other hand, there is evidence on the part of the plaintiff tending to prove that his weight of each and every load, as represented by such tickets or memoranda, and charged to the defendant, were substantially correct. The question as to the alleged shortage in the several loads of crushed stone seems to have been fairly submitted to the jury. The contract left each party to ascertain the weight of each load of the stone as he might be advised. In case of a dispute about the weight, the only way to determine the same was by submitting the question of weight to the jury. That was done as to the only loads upon which there was any conflict in the evidence. There was no error in charging the jury to the effect that, even if there was a shortage in the 3 loads mentioned, yet that fact of itself was insufficient to establish a shortage in any of the other 592 loads.

The principal ground urged for the reversal of the judgment is the ruling of the trial court in excluding all evidence as to damages sustained by the defendant by reason of the plaintiff's refusal to furnish any more stone to the defendant under the contract after June 16, 1898. The defendant claims that under that contract the plaintiff was bound to furnish sufficient stone to enable the defendant to complete a contract he had previously made with the city of Waukesha for “concreting and paving” the “whole of West Main street” in that city. The defendant's answer alleges, in effect, that April 21, 1898, the plaintiff submitted to the defendant the written proposal to furnish stone as mentioned, and that such proposal was accepted by the defendant May 4, 1898; that at the date of such acceptance it was further agreed and understood that the plaintiff should furnish and deliver, whenever requested by the defendant, and without delay, all the crushed stone and curbing necessary for the purpose of concreting and paving the whole of Main street in accordance with the defendant's contract with the city, and that nothing should become due to the plaintiff thereon until the defendant completed its contract with the city, and the work should be accepted by the city, and that such agreement included all stone shipped by the plaintiff to the defendant at Rockford; but there is no allegation that such written contract was ever changed or modified in any way. The trial court expressly held that the defendant was at liberty to prove, if he could, that after his written acceptance of the plaintiff's written proposal there was a modification of such contract, or a subsequent contract. The defendant gave evidence tending to prove that the parties had a long conversation, immediately after such written acceptance, as to the capacity of the plaintiff to furnish such stone, but, as held by the trial court, there is no evidence to justify a finding that the written contract was modified in any respect. It follows that the rights of the parties must be determined by the written contract. The writing so submitted by the plaintiff was a mere proposal to furnish the stone described, at the prices named, and deliver the same on the street in the city of Waukesha in such quantities as might be desired. The defendant's acceptance was absolute, and in no way qualified the proposal. It was conceded on the argument that the defendant was not bound to receive from the plaintiff a sufficient amount of such stone to complete his contract with the city. The question recurs whether the plaintiff was bound, at the option of the defendant, to so furnish and deliver stone sufficient to complete the defendant's contract with the city. Of course, in so far as the stone was actually delivered and accepted by the defendant, the parties became bound; but the question is whether the plaintiff is liable in damages for failure to furnish enough more to enable the defendant to complete his contract with the city.

In making the ruling complained of, the trial court manifestly followed the decision of this court in Wells v. Railway Co., 30 Wis. 605. In that case it appears that the defendant company telegraphed to the plaintiff that it wanted ballasting done from Brookfield to Milwaukee, for which it would pay at a certain rate per cubic yard, and the plaintiff telegraphed back, accepting the proposition; that the plaintiff also submitted to the defendant a written proposition to do all the train work required by the company for the grading of the depot, side track, etc., in the city of Milwaukee, at a certain price per cubic yard which was also accepted by the company, and it was held that the contracts were unambiguous, and were for so much ballasting and grading, respectively, at the places named, as the company should wish to have done, and that the parol evidence offered by the plaintiff that a specific amount of such ballasting or grading was required at either place to complete the work or render the road serviceable, and that the plaintiff was prevented by the company from doing such work, to his damage, was properly rejected. So it has been held in New York that where the defendant...