Myrold v. Pool

• Decision Date: 08 December 1931
• Citation: 206 Wis. 244,239 N.W. 422
• Parties: MYROLD v. NORTHERN WISCONSIN COOPERATIVE TOBACCO POOL.
• Court: Wisconsin Supreme Court

206 Wis. 244

239 N.W. 422

MYROLD

v.NORTHERN WISCONSIN COOPERATIVE TOBACCO POOL.

Supreme Court of Wisconsin.

Dec. 8, 1931.

Appeal from a judgment of the Circuit Court for Dane County; A. G. Zimmerman, Circuit Judge.

Action by John Myrold against the Northern Wisconsin Co-operative Tobacco Pool. From judgment for plaintiff, defendant appeals.--[By Editorial Staff.]

Affirmed.

Action begun August 1, 1930; judgment entered April 21, 1931. Sales contract. This action was brought by the plaintiff against the defendant to recover the amount claimed to be due and owing from the defendant to the plaintiff on account of the sale and delivery of his 1922 tobacco crop to the defendant. The defendant admits that the amounts claimed by the plaintiff are due and owing, but alleges by way of counterclaim that, because of the failure of the plaintiff to deliver his tobacco crop for the four years subsequent to the year 1922 as provided by the contract between the parties, the defendant is entitled to recover as against the plaintiff a sum in excess of the amount due and owing the plaintiff, and defendant prays judgment on its counterclaim for such excess.

From the judgment entered in favor of the plaintiff, the defendant appeals.Gilbert, Ela, Heilman & Raeder and G. Burgess Ela, all of Madison, for appellant.

La Follette, Rogers & Roberts and W. Wade Boardman, all of Madison, for respondent.

ROSENBERRY, C. J.

The issues in this case were submitted to a jury on a special verdict. The jury found: (1) That the grading of plaintiff's 1923 tobacco crop as fixed by defendant's grader was not substantially the true and correct grading and classification of such crop as to type and quality; (2) that the defendant, in the exercise of good faith and under all the circumstances, was not justified in declining to regrade and re-classify the plaintiff's tobacco crop of 1923 upon his request therefor; and (3) that the conduct of the defendant in its dealings with the plaintiff amounted to a substantial breach of the contract between the parties.

The contract was dated June 28, 1922, and covered the tobacco to be grown by the plaintiff down to June 1, 1927, and thereafter either party might terminate it as specified in the contract. By the contract:

“The grower agrees that he will sell to the association all the tobacco produced by or for him; that he will produce and prepare such tobacco for shipment in accordance with the lawful rules and regulations of the association and that he will deliver such tobacco at the time and place and in the manner directed by the association.

The grower agrees that, in the event that he violates this contract, he will pay to the association the sum of five cents per pound for each pound of tobacco produced but not delivered by him according to the provisions herein; and that said sum may be deducted from any money due from the association to the grower.”

The association agrees to buy all of the tobacco produced by or for the grower; the price to be paid to be fixed in the manner provided by the contract.

It is to be noted that the contract contains no provision relating to the grading of the tobacco. The practice was to have certain samples taken from the crop. These samples were then graded by the defendant's graders without knowing the name of the grower. On the basis of this grading, the tobacco was to be accepted and ultimately paid for. This practice was followed in 1922, and no controversy arose with respect to the 1922 contract, either as to quantity or grade. In the early part of 1924, the defendant's samplers took samples out of the crop raised in 1923, which samples were thereafter graded, and about the middle of March, 1924, the plaintiff received a statement showing that his “crop had been graded in Grade D, and that this grade had 68.6% of leaves 18 inches and up; 7.2% under 18 inches, 24.2% of seconds or table rags, and that there was 3 bundles of nondescript; 24.5% being 18 inches and up; 40.9% being under 18 inches and 34.6% of seconds.”

Upon receipt of this report, plaintiff notified defendant that he objected to the grading and threatened to withdraw from the pool. After some discussion, the defendant sent two other graders to plaintiff's premises who examined the tobacco and found that the grade made and reported to plaintiff was substantially correct.

In the spring of 1923, the defendant, desiring to raise money upon the tobacco then in its hands, found that the contract contained no provision for grading or mingling, and sought to amend the same by having the owner sign the document known as Exhibit B, the material part of which is as follows:

“That said Northern...