N. Supply Co. v. Wangard

• Decision Date: 18 October 1904
• Citation: 123 Wis. 1,100 N.W. 1066
• Parties: NORTHERN SUPPLY CO. v. WANGARD.
• Court: Wisconsin Supreme Court

123 Wis. 1

100 N.W. 1066

NORTHERN SUPPLY CO.

v.WANGARD.

Supreme Court of Wisconsin.

Oct. 18, 1904.

Appeal from Circuit Court, Lincoln County; W. C. Silverthorn, Judge.

Action by the Northern Supply Company against Anton Wangard. Judgment for defendant, and plaintiff appeals. Reversed.

Action to recover for a car of potatoes sold by plaintiff to defendant free on board cars at Tomahawk, Wis., shipment to be made from a point elsewhere.

The complaint was in the usual form of a declaration on contract to recover for property sold and delivered at an agreed price. As it was amended on the brief, the amount claimed was $186, the price of 600 bushels of potatoes at 31 cents per bushel, less $41.80, paid thereon. The defendant admitted making a contract with plaintiff for the potatoes and the pretended execution thereof by delivery of potatoes mentioned in the complaint, but alleged the following facts for a defense and counterclaim. The potatoes were sold under an agreement, providing for delivery at Tomahawk, freight paid, of potatoes of good, sound, white stock, suitable for the plaintiff's business, and that would keep well. The potatoes were not of the kind or quality agreed upon. They were not raised on sand and were not sound when shipped, or good white stock, but were defective and worthless. Plaintiff knew when the potatoes were purchased the particular purpose for which they were designed, and that those sent were worthless therefor. Defendant received the potatoes, relying on the agreement aforesaid, paying $36.07, freight thereon. The defects in the potatoes were of a character not observable by ordinary attention thereto. As soon as the potatoes were received defendant commenced selling them by retail. Complaint was soon made by customers that they were defective and not fit for use, whereupon defendant notified plaintiff, with the result that it refused to receive back the property or concern itself at all in respect thereto. By reason of the defective condition of the potatoes it became necessary to assort them at an expense of $25, to the defendant's damage in such sum. He placed the potatoes, before knowing of their condition, in his cellar upon about 75 bushels of good potatoes, which were in consequence destroyed, to his damage in the sum of $30. In the course of thirty days after the potatoes were put in his cellar, by reason of their condition, defendant was obliged to remove them therefrom and throw the same away, to his damage for such removal in the sum of $13. Potatoes of the quality contracted for when those in question were received were worth 35 cents per bushel, or $210 for 600 bushels, while those delivered were not worth to exceed $60, to the defendant's damage in the sum of $150. Judgment was prayed for such several sums.

The cause was commenced in the justice court and carried to the circuit court by appeal. Some amendments to the complaint and to the answer were there allowed. No reply was interposed. Such amendments did not materially change the aspects of the case, as before indicated. There was evidence on the trial to the effect that defendant was a retail grocer; that he and appellant's agent, at the former's store in Tomahawk, had some negotiations respecting the sale of potatoes by the latter to the former during which the agent represented that plaintiff could furnish good, sound white stock, raised on sand and that would keep all winter, and that upon such representations defendant agreed to take 400 bushels or more of such stock. There was further evidence to the effect that as a result of the negotiations a memorandum of the agreement entered into was made in these words:

“Dated October 6th, 1900.

N. S. Co., Amery.

Ship to A. Wangard,

At Tomahawk, Wis.

How ship--When--.

Terms--

400 bush. s'k'd' potatoes or more, 31c.

Will order out.

F. Langenbach.”

--Such memorandum being made in triplicate, and one left with the defendant, one sent to plaintiff and one retained by the agent. There was further evidence that pursuant to the condition indicated by the words “will order out” the potatoes were not to be sent till a communication was made in writing from the defendant to the plaintiff in these words:

“Tomahawk, Wis., Oct. 11, 1900.

Dear Sir:-- * * * You can send me 600 bushels of potatoes and one or two tons of ground corn and oats.

Yours truly, A. Wangard.”

“I want good potatoes. * * * If you can put more than 600 bushels of potatoes, I wish you would fill the car as big as you can.”

There was further evidence as follows: Pursuant to such communication the potatoes in question were sent and in due course of time arrived at Tomahawk. The freight was paid by the defendant and potatoes received into his possession. When they arrived, though they were defective and not such as those agreed upon, the defects were not discoverable by the exercise of ordinary attention to the matter, nor until after the potatoes were placed in defendant's cellar. They were so placed and on top of about 75 bushels of good potatoes. About two or three days thereafter, it being suggested by customers to whom some of the potatoes had been sold that they were not suitable for use, those remaining in the cellar were examined and found to be very defective, and in no sense such as plaintiff agreed to deliver. Thereupon plaintiff was notified that the potatoes would not be accepted in satisfaction of the contract. Thereafter, from time to time, small portions of the potatoes were assorted in order to obtain those which were salable, to satisfy the wants of customers dealing at the defendant's store. The potatoes were handled in that manner for some three weeks. At the end of that time those which remained had become a mass of decayed and filthy matter and entirely worthless. Shortly thereafter such decayed mass, which included the remnants of the potatoes purchased and of the 75 bushels, which were in the cellar when the former were placed therein as aforesaid, was removed and cast away. The cellar at this time was in a very filthy condition. Water from the decayed mass had accumulated therein to a considerable extent, and the odor therefrom so tainted the atmosphere in the store above that customers would hardly venture therein. Proof was further made of the cost of removing the decayed mass as aforesaid, of the amount of salable potatoes that were secured, and of the value of such potatoes as those contracted for at the time of the delivery. Such further reference to the facts as may be necessary to the treatment of this case will be found in the opinion. At the close of the evidence defendant moved for judgment upon the ground that no reply was made to the counterclaim contained in the answer. The motion was denied. The cause was then submitted to the jury for a special verdict, such exceptions being taken to the interrogatories composing the same and the instructions given in respect thereto as seem to be necessary to an understanding of the question, are discussed in the opinion. The jury found in substance, as follows: The plaintiff and defendant bargained for the sale of 600 bushels of potatoes, to be delivered by the former to the latter on board cars at Tomahawk at 31 cents per bushel: Plaintiff knew the purpose for which the defendant purchased the potatoes. It was not agreed that the defendant should inspect the potatoes before removing the same from the cars, and then reject them if not found satisfactory. A person of ordinary care could not by ordinary attention to the matter have discovered by inspecting the potatoes at the time they arrived at Tomahawk, before removing them from the car, that they were not according to the agreement. Two hundred bushels only of the potatoes delivered were according to contract. None of the potatoes spoiled after the receipt thereof by defendant as the direct and natural consequence of his not properly caring therefor. Four hundred bushels of the potatoes spoiled as a direct natural consequence of defects existing therein at the time of the delivery to defendant. The wholesale market price of such potatoes as those agreed upon, at the time the delivery was made, was 31 cents per bushel. The reasonable expense of removing the rotten potatoes from the cellar was $13, and of assorting the potatoes $10. Fifty bushels of good potatoes, which were in the cellar when the potatoes in question were received and placed therein, were spoiled as the direct and natural consequence of such placing. Notice was seasonably given to plaintiff that the potatoes would not be accepted as conforming to their agreement. After the coming in of the verdict there was a motion to set the same aside, and for a new trial, which was denied. Judgment was thereupon entered and plaintiff appealed therefrom.

A. H. Woodworth (Reid, Smart & Curtis, of counsel), for appellant.

G. M. Sheldon and Flett & Porter, for respondent.

MARSHALL, J. (after stating the facts).

Respondent's counsel contend that the assignments of error to impeach the judgment cannot properly affect it since there was no reply to the counterclaim contained in the answer, and respondent was therefore entitled to the judgment obtained on the pleadings. If a reply were required, under the circumstances, in order to put the allegations constituting the counterclaim in issue, it was effectually waived by respondent's treating the same as at issue by going to trial upon the merits, and proceeding therein till near the close thereof before suggesting anything to the contrary. Killman v. Gregory, 91 Wis. 478, 65 N. W. 53; Enc. Pleading & Practice, 18, 650.

Appellant contends that the judgment is not sustained by the verdict for several reasons, which will be considered:

(a) The verdict and judgment are based on express warranty and one essential fact to sustain that, since it is undisputed that the contract on plaintiff's part was made by its agent, was neither found by the jury, nor was there any evidence on...