Nickel v. Theresa Farmers Coop. Ass'n

• Decision Date: 16 October 1945
• Citation: 20 N.W.2d 117,247 Wis. 412
• Parties: NICKEL v. THERESA FARMERS COOP. ASS'N.
• Court: Wisconsin Supreme Court

247 Wis. 412

20 N.W.2d 117

NICKEL

v.THERESA FARMERS COOP. ASS'N.

Supreme Court of Wisconsin.

Oct. 16, 1945.

Appeal from a judgment of the Circuit Court for Dodge County; Louis J. Fellenz, Circuit Judge.

Affirmed.

Action on contract to perform certain services, commenced August 1, 1942 by Henry Nickel against the Theresa Farmer's Cooperative. The defendant counterclaimed for damages for breach of a sales contract. Judgment was for plaintiff. Because of a credit allowed, plaintiff appeals.

Plaintiff, a dealer in lumber brought his action to recover money due him for the razing of a certain building for defendant in October of 1941. The lower court found $215.09 due and owing for such services and awarded damages therefor.

By way of counterclaim, defendant alleged that on September 6, 1941 ‘the plaintiff and defendant entered into an agreement, whereby the plaintiff agreed to sell and the defendant agreed to buy all 2 inch and 3 inch lumber and all timber, at $30.00 per thousand board feet, and all maple flooring at $28 per thousand board feet, all F. O. B. Theresa Station, Wisconsin, that might be required, per architect's specifications, by the defendant for the construction of a corn crib, grain elevator and warehouse at Theresa Station, Wisconsin, the same to be delivered by the plaintiff as directed by the defendant. * * * That up to September 24, 1941, plaintiff had delivered to defendant, pursuant to the aforesaid contract, lumber and timber at the contract price to the extent of $92.34, which lumber and timber was actually received and accepted by the defendant; That on the 20th day of October, 1941, the defendant paid to plaintiff the sum of $100 in part payment for the lumber, timber, and flooring delivered and to be delivered by plaintiff to defendant pursuant to the aforesaid agreement. * * * That although often requested and directed to do so by defendant, plaintiff thereafter failed and neglected to ship the balance of the lumber, timber, and flooring as agreed. That on or about November 28, 1941, plaintiff notified defendant that he refused to perform his contract with defendant, and that he would not deliver the lumber, timber, and flooring as agreed. * * *’ The plaintiff denies the above allegations.

The case was tried to the court. The findings and conclusions are (1) that on the 6th day of September, 1941, the agent of the defendant appeared at the office of the plaintiff and requested a quotation for lumber to be used in the construction of a warehouse; that plaintiff quoted certain prices to defendant, F. O. B. Milwaukee, (2) that on September 12, 1941 certain material was delivered to the plaintiff in accordance with the quotations of September 6, 1941, (3) that thereafter plaintiff refused to deliver to defendant the lumber to be used in the construction of the warehouse in accordance with the quotation of September 6, 1941, (4) that defendant purchased lumber elsewhere at a price in excess of the price quoted by plaintiff and was damaged by reason of the increased price in the sum of $195. In addition to the findings there was a written decision filed by the trial court in which it was held ‘that shipment was made pursuant to the original contract to furnish lumber for the construction of both the elevator, warehouse and corncrib.'

Paul E. Bornemann, of Milwaukee, for appellant.

Husting & Pike, of Mayville, for respondent.

FAIRCHILD, Justice.

The question upon which the affirmance of the judgment on the counterclaim depends is whether on September 6, 1941 plaintiff promised to supply all the lumber needed for defendant's building at the prices quoted. There is sufficient evidence to sustain the finding that there was a subsequent delivery and acceptance by the defendant of a quantity of lumber at the prices quoted September 6, 1941 so that the alleged oral contract of September 6th is taken out of the Statute of Frauds by partial delivery, sec. 121.04, Stats. Unless there was concluded an actual agreement between the parties the subsequent delivery and acceptance of a part of material contracted for can have no effect in validating the contract. The delivery would be considered as an individual complete order.

The circumstances disclosed by the testimony and accepted by the court as establishing the material facts, are: That on September 6, 1941, Mr. Eckman, manager of defendant went to the office of the plaintiff lumber company to make arrangements to purchase lumber necessary for the construction of a warehouse at Theresa, Wisconsin; that he had with him a rough sketch of the building to be constructed. He testified that when he showed Mr. Nickel the proposed plans ‘he recommended to me that it was his idea that according to the laws of the State of Wisconsin, the architect should draw the plans. * * *’ Mr. Eckman then told Mr. Nickel that he knew lumber was somewhat scarce and it was necessary to get it before any difficulty arose. Mr. Eckman then said he would get in touch with the architect as suggested and call upon Mr. Nickel to have the lumber sent out to him. Mr. Nickel then wrote quotations of prices on the back of a business card and gave it to Mr. Eckman. Thereafter, part of the lumber necessary was delivered to the defendant priced on the invoice at sums which varied from the quotation of September 6th. When this was called to the attention of Mr....