Karp v. Coolview of Wis., Inc.

• Decision Date: 27 October 1964
• Citation: 25 Wis.2d 299,130 N.W.2d 790
• Parties: Harry KARP, d/b/a Capitol Court Travel Service, Plaintiff-Respondent, v. COOLVIEW OF WISCONSIN, INC., a Wisconsin corporation, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 790

130 N.W.2d 790

25 Wis.2d 299

Harry KARP, d/b/a Capitol Court Travel Service, Plaintiff-Respondent, v. COOLVIEW OF WISCONSIN, INC., a Wisconsin corporation Defendant-Appellant.

Supreme Court of Wisconsin.

Oct. 27, 1964.

Herbert L. Usow, Milwaukee, Robert Sanderson, Milwaukee, of counsel, for appellant.

Seymour Gimbel, Milwaukee, for respondent.

HALLOWS, Justice.

The defendant claims the trial judge made no findings of fact and conclusions of law but is under the erroneous impression that when a trial judge makes an oral decision from the bench he must also state at that time all the findings of fact on which he bases his decision. In this case after the oral decision, the plaintiff's attorney prepared written findings of fact and conclusions of law, submitted to them to counsel, and presented them to the court. 'When the trial judge signed such findings and conclusions they became the findings and conclusions of the trial judge and the responsibility of their correctness became his.' Kamuchey v. Trzesniewski (1959), 8 Wis.2d 94, 98 N.W.2d 403; Galusha v. Sherman (1900), 105 Wis. 263, 81 N.W. 495, 47 L.R.A. 417.

The court adopted the plaintiff's version of the facts that plaintiff had extended credit to the defendant for the airline tickets for officers of the corporation and others in light of a custom which had existed between the plaintiff and the defendant. Whether the findings of the court are against the great weight and clear preponderance of the evidence depends upon whether the court was in error in allowing evidence as to the custom and in finding there was no accord and satisfaction.

The facts are in dispute. According to the plaintiff's version Al Kaplan, the defendant's treasurer, placed reservations for 14 tickets to Florida in December of 1962. One reservation was subsequently canceled. These tickets were for Al Kaplan, his wife and three children, for his father-in-law Al Laiken, president of the defendant, and Mrs. Laiken, Ben Braver, a nephew of Laiken, and Mrs. Braver, Howard Braver, also a nephew of Laiken, and Mrs. Braver, and Mr. and Mrs. Earl Bowling. In the testimony the Bravers and Bowling are variously referred to as employees, salesmen, or as independent contractors. Over the objection of the defendant the court admitted evidence of a course of conduct between the plaintiff and the defendant to the effect Laiken and Kaplan as officers of the defendant opened a charge account with the plaintiff in March, 1962, and thereafter on three occasions airplane tickets were ordered, sent to the corporation and paid for by the corporation. These tickets were for Laiken and Kaplan and their wives and on occasion Mr. and Mrs. Laiken, a Mr. and Mrs. Zuber, and a Mr. and Mrs. Bowling. Two of these trips were to Las Vegas, Nevada.

The tickets for the Miami trip of December, 1962, were picked up by Bowling and the company was billed $1,682.43 therefor on December 24th. Similar bills were sent the defendant on January 15, January 25, and February 23, 1963. Plaintiff claims that when the bill was not paid he talked to Mr. Kaplan who stated he took 30 to 60 days for payment. Later after the February bill was sent with a notation referring to a 60-day time-payment request, a request was made that the company be billed only for Kaplan's and Laiken's tickets and the bills were to be sent to the individuals for their tickets. The defendant paid the bill for the Laiken and Kaplan tickets. This suit involves the payment for the other six tickets.

The defendant's testimony showed the individuals ordered their own tickets and there was no express promise on the part of the defendant to pay for any of the tickets, that such payments as the corporation had made in the past for airplane tickets were charged back to the officers or in the case of Bowling to his earned commissions. We cannot say the findings are against the great weight and clear preponderance of the evidence if the evidence of the individual custom existing between the defendant and the plaintiff is considered.

The plaintiff contends this evidence was properly admissible and tends to show what the contract between the parties was and that he had a right to rely upon his past credit business with the defendant in this instance. The fact of the custom is not denied by the defendant, only its admissibility is challenged. In a breach of contract action a local custom or usage or an individual course of dealing between two parties may be proven as having probative value to show the intention of the parties to a contract or on what the parties had a right to depend in their dealing. 4 Jones, Evidence, 5th ed., p. 1932, Rules 49 and 50; also see Rylander v. Laursen (1905), 124 Wis. 2, 102 N.W. 341. Here, the plaintiff at the defendant's request had on three prior occasions extended credit to the defendant under similar circumstances and had been paid for the airplane tickets by the corporation. How the defendant charged back the tickets to its officers is no part of the custom in respect to the plaintiff as he had no knowledge of the charge-backs. We find no error in the court admitting the evidence of the prior course of conduct between the parties.

The defendant claims there is an accord and satisfaction when it paid for the Kaplan and...