Scaramelli & Co. v. Courteen Seed Co.
| Decision Date | 10 January 1928 |
| Citation | 217 N.W. 298,194 Wis. 520 |
| Parties | SCARAMELLI & CO., INC., v. COURTEEN SEED CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court of Milwaukee County; Chester A. Fowler, Judge.
Action by Scaramelli & Co., Inc., against the Courteen Seed Company, wherein defendant filed a counterclaim. Judgment for defendant, and plaintiff appeals. Affirmed.--[By Editorial Staff.]
Contract. Notari & Co. is a partnership dealing in clover seeds at Bologna, Italy. Scaramelli & Co., Inc., is a New York corporation, with its principal office in New York City, acting as a commission agent and factor in the clover seed trade. Courteen Seed Company is a Wisconsin corporation, a large dealer in seeds, having its principal place of business in Milwaukee.
Two transactions are involved, one designated the 1918 transaction, the other the 1922 transaction. In the 1922 transaction Scaramelli & Co., Inc., acted as factor for Notari & Co. in connection with the sale of clover seed by Notari & Co. to Courteen Seed Co.; the contract being made in the name of Scaramelli & Co., Inc. Early in 1922 Scaramelli & Co., Inc., acting as factor for Notari & Co., offered to Courteen Seed Company certain Italian red clover seed, type 731, which resulted in a contract by which Scaramelli & Co., Inc., sold to Courteen Seed Company, for the account of Notari & Co., The contract contains certain other clauses which are not material here.
The seed did not arrive at the port of New York until April 6th, too late for the spring season, and the buyer refused to accept the same. The seller resold the seed, and, including storage, cartage, and loss of $6.00 per bag, sustained a loss of $2,085 and interest, and brought this action to recover the same. The defendant set up that, to the knowledge of the plaintiff, the goods were sold to meet a seasonal demand; that, by reason of the delay in shipment, they arrived too late, and for that reason the defendant refused to accept them; second, that there was a well-known general custom in the trade that a shipment such as was involved in this transaction is required to go forward by the first regular vessel, where there were such regular vessels plying between the places where the goods were to be loaded and where they were to be delivered; that such regular vessels plied between Genoa, the port nearest to Bologna, and New York City, and that, if shipped in accordance with the usual and general custom, the goods would have arrived in New York not later than March 20, 1922. The defendant further alleges that the seller caused the goods to be loaded upon a steamer known and designated as a tramp steamer; that the seller knew, or should have known, that the goods so shipped would not arrive at the port of New York within 44 days. The progress of the vessel upon which the goods were shipped is set out in detail, from which it appears that the vessel left Genoa February 20, 1922, stopping at six other ports, and arriving in New York on April 8, 1922.
The defendant further alleges that there was a general and uniform usage and custom in the seed trade by which the seller was to forward bulk samples with the shipping documents, but the seller failed to forward such bulk samples, and generally denied all the allegations of the complaint, except as expressly admitted. The defendant also had a counterclaim for damages, by reason of which it was alleged that it was deprived of the profit of 2 1/3 cents per pound, amounting to $1,540. The defendant further set up by way of setoff the 1918 transaction, from which it appears that the defendant bought and paid for “500 bags of Italian red clover seed, type number 605, $34.00 per hundred kilos, f. o. b. Genoa, Italy, payable in cash against shipping documents at National City Bank, Genoa.”
Such goods were denied entry into the United States and to Canada, and were finally resold at a loss, including storage, insurance, and freight, amounting to $15,000. There was a reply to defendant's counterclaim, the case was tried by the court, and resulted in sustaining defendant's contentions as to the 1922 shipment, not determining the issues as to the shipment of 1918. The plaintiff appeals from the judgment for $1,540, interest and costs, amounting in all to $2,031.80.Aaron B. Rosenthal, of Milwaukee, for appellant.
Fawsett & Shea, of Milwaukee (C. F. Mikkelson, of Milwaukee, of counsel), for respondent.
The principal contentions made by the plaintiff here are: (1) That the terms of the 1922 contract have not been varied by proof of a general custom as contended for by the defendant; (2) that the custom was not proven upon necessary, positive, clear, and satisfactory testimony; (3) that the evidence is not sufficient to support the judgment in favor of the defendant against the plaintiff; and (4) that the defendant established no right to a set-off with respect to the transaction in 1918.
Before proceeding to consider the issues in the case, it is necessary to dispose of a preliminary question. Judgment in this case was entered July 29, 1926, and notice of entry thereof was served July 31, 1926. On June 9, 1927, an order to show cause was obtained why an extension of time should not be made for preparing and settling a bill of exceptions, and on June 18, 1927, an order enlarging and extending the time to the 29th day of July, 1927, was made. It appears from the affidavits that the defendant consented to an extension of the time until the 1st of December, 1926. On January 18, 1927, demand was made for payment of the judgment, and thereafter there were repeated demands. The excuse offered by the plaintiff is that Mr. Scaramelli did not return to the United States until the fall of 1926; that he was unable to decide whether or not to take an appeal because:
“First, the plaintiff acted as agent in this matter for the firm of Notari & Co., in Italy, and, before deciding whether or not the case would be appealed, the plaintiff had to familiarize himself with the details as far as possible, and communicate with the principal, Notari & Co. of Bologna, Italy.
Secondly, that the affiant was not personally acquainted with his Milwaukee attorneys.
That, after a long lapse of time, he finally received a communication from the principal in Italy, to the effect that the principal would not pay; therefore making it necessary for affiant to carry on this appeal at his own expense.”
The time for settling bill of exceptions was extended upon condition that the plaintiff give bond as provided by statute for stay of execution upon the judgment.
This matter is discussed in Ward v. Racine College, 176 Wis. 168, 185 N. W. 635, where it is said:
“While discretion is vested in trial courts for the relief of parties who, by reason of some excusable fault or neglect, have been deprived of the right given them, it should be exercised only where good and adequate cause is shown by the affidavits of persons having personal knowledge of the facts, and where there is a delay for which no substantial, adequate reason is shown the party in default should not be relieved.”
See Behnke v. Kroening, 174 Wis. 224, 182 N. W. 837;Colle v. Kewaunee, Green Bay & Western R. Co., 149 Wis. 96, 135 N. W. 536.
[1] If the question raised were properly presented by the record, we should have considerable difficulty in sustaining the order, for the reasons pointed out in Ward v. Racine College, supra. The order was entered here nearly eleven months after...
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