J. W. Denio Milling Company v. Malin

• Court: Wyoming Supreme Court
• Writing for the Court: BEARD, JUSTICE.
• Citation: J. W. Denio Milling Company v. Malin, 25 Wyo. 143, 165 P. 1113 (Wyo. 1917)
• Decision Date: 26 June 1917
• Docket Number: 894
• Parties: J. W. DENIO MILLING COMPANY v. MALIN

165 P. 1113

25 Wyo. 143

J. W. DENIO MILLING COMPANY v. MALIN

No. 894

Supreme Court of Wyoming

June 26, 1917

ERROR to District Court, Sheridan County; CHARLES E. WINTER, Judge.

Action by J. M. Malin against the J. W. Denio Milling Company. Judgment for plaintiff and defendant brings error. The material facts are stated in the opinion.

Reversed.

E. E Enterline and F. M. Downer, Jr., for plaintiff in error.

The contract was made in Wyoming upon its confirmation by the Milling Company. The laws of Montana do not govern. (Capps v. Hensley, 23 Okla. 311, 100 P. 515.) Contracts are construed and their validity determined by the law of the place where made. The lex loci contractus governs. (9 Cyc. 670 and 682-683; 1 Elliott on Contracts, Sec. 62; Minor on Conflict of Laws, 372, 377; 2 Elliott on Contracts Secs. 1110-1117; Aultman, Miller & Co. v. Holder, 68 F. 467; Perry v. Mount Hope Iron Co., 15 R. I. 380 5 A. 632, 2 Am. St. 902; Engs., et. al., v. Priest, 65 Ia. 232, 21 N.W. 580; Sullivan v. Sullivan, 70 Mich. 583, 38 N.W. 472; Barrett v. Kelley, 29 A. 809; Bank of Yolo v. Sperry Flour Co., 141 Cal. 314, 74 P. 855, 65 L. R. A. 90; Galloway v. Standard Fire Ins. Co., 45 W.Va. 237, 31 S.E. 969; Emerson v. Proctor, 97 Me. 360, 54 A. 849; McGarry v. Nicklin, 110 Ala. 559, 17 So. 725, 55 Am. St. 40; Tollman v. Reed, 115 Mich. 71, 72 N.W. 1104.) Allegations as to the laws of Montana were not proven. This court will not take judicial notice of the laws of sister states. Statutes provide a method of proving statutes of other states. (Bliler v. Boswell, 9 Wyo. 57, 61 P. 867; Comp. Stats. 1910, Sec. 4541.) Plaintiff was bound to establish proof of Montana laws in the manner provided by statute. (12 Ency. of Evi. 44; Jones on Evidence, 2nd Ed., 504.) But the sections of the Montana Code pleaded in the petition should have been excluded upon objection, for the reason that the contract was made in Wyoming and its laws applied and also gives no proof offered showing the Montana sections to have been published by authority of that state. The contract is uncertain as to when shipments were to be made, hence parol evidence is admissible to show the interpretation placed upon it by the statutes, but not admissible to vary its terms. (35 Cyc. 629; St. Louis Consol. Coal Co. v. Jones & Adams Co., 232 Cal. 326, 83 N.E. 851; Dayton v. Hogglund, 39 Ohio St. 680; Mereau v. U.S. 107 U.S. 437.) Where the parties to a contract have given it a particular construction, such construction will generally be adopted by the courts in giving effect to its provisions. (Windmiller v. People, 78 Ill.App. 273; City of Vincennes v. Citizens' Gas Light & Coke Co., 132 Ind. 114, 16 L. R. A. 485; Pratt v. Prouty, 104 Ia. 419, 73 N.W. 1035; Ellis v. Harrison, 104 Mo. 370, 16 S.W. 198; Williams v. Auten, 68 Neb. 26, 93 N.W. 943; American Soda Fountain Co. v. Bakery, 14 Okla. 258, 78 P. 115; 6 R. C. L., Sec. 241, p. 852.) Subsequent acts and declarations of the parties to a contract tending to show their construction of the contract may be shown to explain its meaning. (Lewiston Co. v. Grand Trunk Co., 97 Me. 261, 54 A. 750; Laclede Construction Co. v. T. J. Moss Tie Co., 125 Me. 25, 84 S.W. 76; Kopper v. Fulton, 71 Va. 211, 44 A. 92.) The practical interpretation given a contract by the parties themselves is entitled to great, if not controlling influence. (Switzer v. Pinconning Mfg. Co., 59 Mich. 488, 26 N.W. 762; Board of Commissioners v. Gibson, 158 Ind. 471, 63 N.W. 982.) Where a broker's contract for the sale of oil was silent as to the capacity of the tank cars in which it was to be delivered parol testimony was admissible to show that it was orally agreed between the parties that such tanks should be of 135 barrels capacity. (Sherman Oil & Cotton Co. v. Dallas Oil & Refining Co., 77 S.W. 961.) Where the language of a contract is uncertain and the parties thereto, by their subsequent acts and conduct, have shown that they construed it alike and within the purview of the constructions permitted as possible by such language, the courts will ordinarily follow such adopted construction as the correct one. (Wiebener, et al., v. Peoples, 44 Okla. 32, 142 P. 1035; Guthrie Mill & Elevator Co. v. Howe Grain & Merc. Co., 157 P. 291.) Defendant offered to prove the interpretation of the terms of the contract by the parties in relation to the first two shipments and upon objection the offer was denied. This was error. If plaintiff by his acts prevented defendant from performing its contract, he cannot recover. (Clark on Contracts, p. 648; Gross v. Lewis & Schmidt, 46 S.E. 175; Scott v. Hubbard, et al., 136 P. 653; Neppach v. O. & C. R. R. Co., 46 Ore. 374, 80 P. 482, 7 Ann. Cas. 1035; Mo. K. & T. Ry. Co. v. Pratt, 64 Kans. 118, 67 P. 464; Hixson Map Co. v. Nebr. Post Co., 98 N.W. 872; Carstens v. McDonald, 38 Neb. 858, 57 N.W. 757; King v. Waterman, 55 Neb. 324, 75 N.W. 830; Nat. Supply Co. v. U. K. P. C. Co., 138 P. 599; Chapman v. Kans. City, C. & S. R. Co., 48 S.W. 647; Holden v. Lyons, 158 S.W. 811; Nat. Masonic A. C. C. Assn. v. Burr, 77 N.W. 1098; 70 N.J.L. 410; 1 A. E. Ann. 432.) The letter written by defendant requesting instructions is presumed to have reached the plaintiff. (National Masonic Assn. v. Burr, supra; Rosenthal v. Walker, 111 U.S. 185; Schutz v. Jordan, 141 U.S. 213.) The excluded evidence as to the interpretation of the contract by the parties was competent and should have been admitted. (35 Cyc. 628; Young v. Arntze, 86 Ala. 116, 5 So. 253; Sivell v. Hogan, 115 Ga. 667, 42 S.E. 151; Carleton v. Lombard, 149 N.Y. 137, 43 N.E. 422; Elfring v. New Birdsell Co., 165 S.D. 252, 92 N.W. 29; Zipp v. Colchester Rubber Co., 125 S.D. 218, 80 N.W. 367; Pape v. Ferguson, 28 Ind.App. 298, 62 N.E. 712; Loomis v. Norman Printers Supply Co., 81 Conn. 343, 71 A. 358.) It is incumbent upon plaintiff to allege and prove that he was ready and willing to receive, accept and pay for the goods. (35 Cyc. 619-620, 624-625 and 627-628; Anderson v. Read, 106 N.Y. 333, 13 N.E. 292; Blalock v. Clark, 137 N.C. 140, 49 S.E. 88; Neis v. Yocum, 16 F. 168, 9 Sawy. 24; Magic Packing Co. v. Stone-Ordean-Wells Co., 158 Ind. 338, 64 N.E. 11; 4 Enc. Pl. & Prac. 932; 11 Enc. of Evi., pp. 602-602.) Time is of the essence of the contract and plaintiff had to prove that he was ready and willing to receive the remaining three carloads of flour on and prior to February 1st, 1915. (3 Elliott on Contracts, Sec. 2048; Cheney v. Libbey, 134 S.W. 68, 33 L.Ed. 818; Wilson v. Roots, 119 Ill. 379, 10 N.E. 204; Carter v. Phillips, 144 Mass. 100, 10 N.E. 500; Waterman v. Banks, 144 U.S. 394, 36 L.Ed. 644; Fratt v. Daniels-Jones Co., 47 Mont. 487, 133 P. 700; Curtis v. Parham, 49 Mont. 140, 140 P. 511; Slotboom v. Simpson Lumber Co., 135 P. 888.) The stipulation in the contract for liquidated damages was valid and binding upon both parties. (3 Elliott on Contracts, Sec. 2125; 35 Cyc. 633; Black v. DeCamp, 78 Ia. 718, 43 N.W. 625; Canavan v. Neeld, 189 Pa. 208, 42 A. 115; Hayes v. Richie, 34 S.W. 150; Newell v. New Holstein Canning Co., 119 Wis. 635, 97 N.W. 487; Sawyer v. McIntyre, 18 Vt. 27; Richebach v. Sage, 13 Wash. 364, 43 P. 354, 52 Am. St. 51; Sheard v. U. S. F. & G. Co., 107 P. 1024.) In considering the propriety of directing verdict, rules governing are that questions of fact must be decided by the jury and questions of law by the court. Credibility of witnesses and weight of conflicting testimony are questions of fact. (Boswell v. Bank, 16 Wyo. 161, 92 P. 624, 93 P. 661.) Instruction No. 1 directing a verdict of not less than $ 1,215.00 and not more than $ 1,845.00 was erroneous. The testimony did not show that plaintiff was willing to receive the additional shipments prior to February 1st, 1915. Instruction No. 2 was erroneous for the reasons given above. Instruction No. 4 was erroneous and prejudicial because the contract was a Wyoming contract and because of insufficient proof introduced by plaintiff. Instruction No. 6 was likewise erroneous for the above reasons. Instruction No. 7 was erroneous as an intervention of the province of the jury. Instruction No. 8 was in conflict with the provisions of the contract as to damages. The court erred in refusing instruction No. 7. The verdict is not sustained by sufficient evidence.

E. E. Collins and Lonabaugh & Wenzell, for defendant in error.

This was a Montana contract. The case of Capps v. Hensley does not apply. Ratification is equivalent to antecedent authority. (Lorab v. Nissley, 27 A. 242; Bell v. Burrough of Waynesborough, 45 A. 930; Municipal Security Company v. Baker County, 54 P. 174.) Ratification renders the contract obligatory from the outset. (Shuenfeldt v. Junkerman, 20 F. 358-359; Town of Ansonia v. Cooper, 30 A. 760; Goodwin v. Town of East Hartford, 38 A. 876.) The rights of parties under contract are to be determined by the laws of the place where the contract is to be performed. (Banagy v. Taylor, 7 Ohio 142; Pittsburg C. C. & St. L. R. R. Co. v Shepherd, 46 N.E. 61.) The question of the validity of the contract is to be tested by the laws of the state where made, unless performance is to be in another. (1 Mich. N. P. 67; Montana Coal & Coke Co. v. Cincinnati Coal & Coke Co., 69 N.E. 613; Brown v. Gates, 97 N.W. 221, 98 N.W. 205; Western Union Telegraph Co. v. Eubank, 38 S.W. 1068; Western Union Telegraph Co. v. Eubank, 36 L. R. A. 711, 66 Amer. St. Rep. 361; Kanaga v. Taylor, 70 Amer. Dec. 62; Jones on Evidence, Sec. 84.) Title passed in place of delivery. (Engs v. Priest, 21 N.W. 580; 9 Cyc. 670; Elliott on Contracts, Vol. 2, Sec. 1119; Warder v. Arrell, 2 Wash. 282, 1 Am. Dec. 488.) Cases cited by plaintiff in error are not in point. John A. Tallman & Co. v. Reed, 72 N.W. 1104, sustains the contention of defendant in error. Plaintiff was not...