Renne v. Volk
| Decision Date | 12 January 1926 |
| Parties | RENNE v. VOLK. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Eau Claire County; James Wickham, Judge.
Action by V. W. Renne against A. A. Volk. From the judgment rendered, plaintiff appeals. Reversed and remanded for further proceedings.
Defendant, on July 29, 1920, signed a written order on J. B. Colt Company of New York for an acetylene farm lighting plant, to be shipped from factory or warehouse to Eau Claire, Wis. The order provided that in consideration of its acceptance by said company defendant agreed to pay the company $278.05 one year after such acceptance; that it shall become a contract between defendant and the company upon its acceptance by the company. A warranty as to material and workmanship was specified. It contained a further provision which, for convenience, is set out at length in the opinion. It was accepted by the company on August 3d.
About August 7, 1920, defendant, through his attorneys, by telegram and letter notified the company in New York that he canceled the order; refused to go on with the contract; would not accept title; and that the company was not to deliver the same to a carrier for him.
In September the equipment was sent by rail to defendant at Eau Claire, and he refused it. In May, 1922, the J. B. Colt Company assigned the account for collection to plaintiff, who thereupon brought this action for the purchase price aforesaid, and for $275 freight and storage; defendant alleging by answer that the contract was obtained from him through and by means of false representations, and also that, prior to its acceptance, he withdrew the order and canceled it.
Upon the trial at the close of plaintiff's evidence defendant moved for a nonsuit on the ground of the cancellation of the order prior to the shipment, and because plaintiff was not the real party in interest. The plaintiff then moved to amend the complaint by adding a second cause of action for damages for breach of contract, but offered no evidence as to the amount of such damages. Defendant offered no evidence as to any alleged fraud in the obtaining of the contract. Thereupon the court ordered a nonsuit upon the first and a verdict for six cents damages on the second cause of action, and from a judgment in accordance therewith plaintiff appeals.F. M. Wylie, of Madison, for appellant.
Linderman, Ramsdell & King, of Eau Claire, for respondent.
ESCHWEILER, J. (after stating the facts as above).
[1] The contract contained the following provisions:
“If the purchaser shall instruct the company not to ship the material, the company may at its option either hold the goods for the purchaser or deliver the material to a common carrier consigned to the purchaser,...
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