Holbeck v. Southside Malleable Casting Co.
| Decision Date | 04 February 1936 |
| Citation | 220 Wis. 399,264 N.W. 834 |
| Parties | HOLBECK v. SOUTHSIDE MALLEABLE CASTING CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Milwaukee County; S. E. Smalley, Judge.
Affirmed.
Action by Austin A. Holbeck to recover $32,000 on a promissory note signed by Southside Malleable Casting Company. Judgment was in favor of plaintiff.
The complaint sets out the giving of the note and alleges the liability of defendant. The answer of defendant does not deny the issuing of the note, but in defense alleges that plaintiff and defendant entered into a contract under which plaintiff agreed to furnish and install in defendant's factory machinery for preparing and distributing pulverized coal in operating melting furnaces and ovens; that it was agreed that defendant should pay therefor $75,000 in the manner following; $10,000 in cash, when the first furnace was started, and six notes of equal amount covering the balance payable three, six, nine, twelve, fifteen, and eighteen months from date, each note bearing 6 per cent. interest; that in case the saving from the use of pulverized coal in the plant over the cost of producing malleable iron castings during the year 1928, upon the basis of an annual production of 10,000 tons of good castings, did not equal the amount of the note or notes when they became due, then the defendant was to pay such amount as might be equivalent to the actual saving within the quarterly period, prior to the time said note or notes became due; that $10,000 was paid in cash, and notes were accordingly executed and delivered; that the alleged note described in the complaint is in renewal of part of the obligation represented by the sum of the original notes. It is further alleged that there was no saving from the use of pulverized coal as provided by the machinery and equipment supplied by the plaintiff under its contract, and that there has been no saving whatever over the cost of producing malleable iron castings during the year 1928 upon any basis; that defendant has paid the plaintiff about $42,000 of the contract price and more than the defendant was obligated to pay upon said contract, and there is nothing now due to plaintiff.
The trial was upon the merits, and upon the evidence referred to in the opinion, a verdict was directed in favor of plaintiff. From the judgment accordingly entered, defendant appeals.
Wood, Warner & Tyrrell, of Milwaukee, for appellant.
Corrigan, Backus, Sullivan & Backus, of Milwaukee, for respondent.
When the motion for a directed verdict was made by respondent, the evidence established the ownership of the note in suit which, by its terms, was past due; that the contract was entered into as described in the pleadings; that the terms thereof relating to the construction of the machinery were complied with. It also appears that a considerable savings to appellant resulted from the use of the device installed by respondent. The exact extent of the saving over the 1928 cost for 10,000 tons of casting was not ascertainable, because the demand for such castings had diminished rapidly and almost immediately upon installation of the machinery. Evidently the occasion for dispute arose out of this failure of business to require the quantity of castings expected by appellant when the contract was made.
[1] Appellant, at the time the first note fell due, although making payment to apply, insisted that notwithstanding the maturity of the notes, no payment of the principal was due, because under the terms of the contract pursuant to which the notes were given, the time of payment must be further deferred until adequate savings had resulted. The position of respondent was that he had furnished a serviceable equipment capable of saving a substantial amount for appellant and adequate to care for the maturing notes if appellant continued to operate on the basis of 10,000 tonnage of casting during the year; that this was the standard set in the contract. The evidence shows a number of conferences and a continuous exchange of correspondence resulting eventually in the compromising of differences in a settlement agreement, and the giving of the note in accord and satisfaction of all claims. The...
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First Wis. Nat. Bank of Milwaukee v. Pierce
...Bosworth v. Greiling, 213 Wis. 443, 250 N.W. 865;German National Bank v. Barber, 159 Wis. 109, 149 N.W. 767;Holbeck v. Southside Maleable Casting Co., 220 Wis. 399, 264 N.W. 834. [12] It would serve no useful purpose to quote from the voluminous correspondence between the defendant and the ......
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Superior Builders, Inc. v. Large
...footnote 2, at pages 487, 488.6 Holman Mfg. Co. v. Dapin (1923), 181 Wis. 97, 102, 103, 193 N.W. 986; Holbeck v. Southside Malleable Casting Co. (1936), 220 Wis. 399, 404, 264 N.W. 834; Grob v. Nelson (1959), 8 Wis.2d 8, 13, 98 N.W.2d ...
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...and stated that the payment was in full. Plaintiff wrote a letter showing that he so understood. In Holbeck v. Southside Malleable Casting Co., 1936, 220 Wis. 399, 264 N.W. 384 the giving and acceptance of a note in compromise and settlement of a disputed claim constituted accord and satisf......