Lemke v. Larsen Co.
| Decision Date | 06 June 1967 |
| Citation | 151 N.W.2d 17,35 Wis.2d 427 |
| Parties | Elroy LEMKE, Respondent, v. The LARSEN COMPANY, Appellant. |
| Court | Wisconsin Supreme Court |
Wilmer & Surplice, Green Bay, for appellant.
Cornelisen, Denissen, Kranzush, Kuehn & Condon, Green Bay, for respondent.
The sole question on this appeal is whether the trial court was correct in its determination that there were issues of fact to be resolved. In its decision denying defendant's motion for summary judgment, the trial court did not state the issue or issues of fact it believed to exist.
This court has stated that summary judgment should not be granted where there are substantial issues of fact to be determined, when the evidence on a material fact is in conflict, or when there are permissible inferences from undisputed facts that would permit a different result. Weiss v. Mutual Indemnity Co. (1966), 32 Wis.2d 182, 145 N.W.2d 171; Thompson v. Dairyland Mut. Trust Co. (1966), 30 Wis.2d 187, 140 N.W.2d 200.
An examination of the record reflects that there are issues of fact to be determined and that evidence on material facts are in conflict, all of which must be resolved by trial.
One of the paragraphs in the contract is designated 'Harvesting' and reads as follows:
We are cognizant of the fact that by the terms of the contract, the defendant did not guarantee to harvest plaintiff's corn. However, the defendant contends that it did 'endeavor' to harvest the corn under the term of the contract as it understood and interpreted the meaning of the word. The plaintiff contends that defendant did not 'endeavor' to harvest the crop as he understood and interpreted the meaning of the contract. As a result, some 74 acres of corn planted by the plaintiff did not get harvested, for which the plaitniff now claims he should be compensated in some manner. Therefore, is the word 'endeavor' as used in the contract free from ambiguity? We think not.
The defendant submits affidavits from its company employees that the plaintiff's crop was too immature to harvest when they were at his farm to harvest it, and that thereafter when the corn became mature enough to harvest, the fields of the plaintiff were too wet for operation of the defendant's harvesting equipment. The plaintiff, on the other hand, claims his corn was of the same maturity as Dupperpool's and his fields in substantially the same condition. Plaintiff also states that at all material times he had four tractors and stood ready, willing and able to provide them as additional power to harvest the corn, and that defendant at no time requested the plaintiff to provide such additional power although it had authority to do so under the contract.
The plaintiff further alleges in his affidavit '* * * that there were many days during September, 1965, when the field and weather conditions then existing on plaintiff's field were such that the corn could have been harvested. That the plaintiff knows of his own knowledge that there were several occasions on such days when the harvesting crew of the defendant worked 'short days' by starting late in the morning and quitting early in the afternoon.'
These affidavits raise questions of fact as to whether the defendant 'endeavored' to provide labor and equipment as its meaning was understood and intended by each of the parties individually. Each of the parties must have attributed some meaning to the word. What they intended it to mean we have no way of knowing from the contract itself and it therefore becomes subject to ambiguity. Under such circumstances,...
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...interpretation for the jury, not mutual assent or contract formation. Patti, 72 Wis.2d at 353, 241 N.W.2d 158; Lemke v. Larsen Co., 35 Wis.2d 427, 431, 151 N.W.2d 17 (1967). In fact, if a disagreement between parties as to their intent could support a claim of indefiniteness, juries would r......
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