Sheffield-King Milling Co. v. Jacobs

• Citation: 175 N.W. 796,170 Wis. 389
• Parties: SHEFFIELD-KING MILLING CO. v. JACOBS.
• Decision Date: 13 January 1920
• Court: United States State Supreme Court of Wisconsin

170 Wis. 389

175 N.W. 796

SHEFFIELD-KING MILLING CO.

v.JACOBS.

Supreme Court of Wisconsin.

Jan. 13, 1920.

Appeal from Circuit Court, Dodge County; Martin L. Lueck, Judge.

Action by the Sheffield-King Milling Company against F. S. Jacobs. From judgment for plaintiff, defendant appeals. Affirmed.

Eschweiler, J., dissenting.

Contract. From the complaint it appears that the plaintiff is a Minnesota corporation located at the city of Minneapolis, and manufacturers and marketers of a certain grade and quality of flour known as “Gold Mine”; that on the 7th day of May, 1917, the defendant, a dealer residing at the city of Waupun, by written contract purchased 205 barrels of Gold Mine flour, 196 pounds to the barrel, which was packed in cotton bags each containing 49 pounds, and agreed to pay for the same at the rate of $12.10 per barrel. Said contract was duly executed by the parties, and the parts material here are as follows:

“Dated Waupun, Wisconsin, May 7, 1917.

Sheffield-King Milling Co., of Minneapolis, Minn., agrees to sell to F. S. Jacobs, of Waupun, Wisconsin, who agrees to purchase from seller at Faribault, Minn., at the price, on the terms and conditions, and subject to the agreements stated below and on the back hereof, the following goods:

Number of barrels of flour, 205.

Style of package, 49 lb. cotton.

Brand, ‘Gold Mine’ flour.

Price of flour per barrel, $12.10.

Subject to confirmation of Sheffield-King Mfg. Co.

Ship to Waupun, Wisconsin.

Railroad delivery requested by buyer, C., M. & St. P.

On directions to be furnished by buyer, shipment is to be made by seller after September 15th and before January 1, 1918.

Terms: Net. Arrival draft with bill of lading attached.

State Bank of Waupun, Wisconsin.

Freight allowed to Waupun, Wisconsin.”

“[Paragraph relating to shipping directions not material.]

Par. 2. Buyer's failure or refusal to so furnish such directions on or before shipping date above, or within any extended period, if any, shall give seller right, as to any flour and also as to any feed, if any, remaining unshipped by reason of such failure or refusal, to either: (a) Treat contract as if rescinded without damages to either party; or (b) extend shipping date above, or extended period, if any, 30 days, and thereafter (as long as buyer fails or refuses to furnish such directions) continue the life of this contract by as many such successive extensions as seller may desire, all subject to hereinafter mentioned carrying charges against buyer; or (c) ship such goods to buyer within 30 days after shipping date above, or expiration of last extended period, exercising its judgment as to packages desired by buyer; or (d) treat contract as broken and (as to such unshipped goods only) terminate contract at 5 o'clock p. m. central time, on shipping date above, or, if said date has been extended, then on last day of last extended period, and, as to such unshipped flour, recover from buyer (less any sum, if any, paid by way of carrying charges on such unshipped flour only) a sum to be calculated as follows: The difference between highest closing price, at Minneapolis, of No. 1 northern (cash) wheat (delivered) on date this contract bears and highest closing price, at Minneapolis, of No. 1 northern (cash) wheat (delivered) on date of such termination (if latter price be less than former) multiplied by the number of bushels of wheat required to manufacture such unshipped flour, figuring 4 1/2 bushels to the barrel plus a sum equal to 1 cent multiplied by the number of bushels aforesaid (to be calculated for each 30 days, or fraction thereof, intervening between date of this contract and date of such termination), plus, also, a sum equal to 4 cents multiplied by the number of bushels aforesaid. And, if such price of such wheat on date of such termination is greater than price on date of this contract, seller's recovery shall be said 1 cent per bushel for each 30 days, or fraction thereof, aforesaid, and said 4 cents per bushel aforesaid, less such carrying charges paid, and less the difference between said two wheat prices, on the number of bushels aforesaid.”

“Par. 9. If buyer prior to shipping date above (within) or expiration of any extended period, if any, repudiates any of his obligations hereunder, or requests or explicitly directs seller to cancel this contract, or otherwise expresses an intention not to carry out his part hereof, seller may, as to goods shipped and refused by buyer, recover damages as set out in paragraph 3 within, and, as to any and all goods unshipped under this contract, seller may exercise any one of the following rights: (e) Treat entire contract as if immediately rescinded without damages to either party; or (f) treat such conduct as a breach of contract and immediately terminate this entire contract and recover from buyer, as to any and all goods unshipped under this contract, damages calculated in the same mode set out in subdivision (d) of paragraph 2 within, with the qualification that, in such instance, dates for determination of prices shall be date this contract bears and date of termination of this entire contract under the provisions of this paragraph 9, and that said mode of calculation shall be applied, in such instance, to, and damages shall be calculated on, any and all goods unshipped under this contract, and not merely such goods as remain unshipped by reason of buyer's failure or refusal to furnish directions for the shipment thereof, and that carrying charges to be deducted shall be any and all carrying charges paid, if any, on any and all flour unshipped under this contract; or (g) seller may entirely disregard such conduct and breach on buyer's part and exercise any one of the rights given it in paragraph 2 within except that mentioned in subdivision (b) thereof. In case seller elects under either subdivision (e) or (f) of this paragraph, it shall immediately, on so electing, mail buyer notice of such election, and, failing to notify buyer, seller shall be deemed to have elected under subdivision (g) of this paragraph. Seller may elect under either subdivision (e) or (f) of this paragraph any time within 10 days after it has become aware of conduct of buyer in this paragraph referred to.”

“Par. 10. In explanation of measure of damages set out in subdivision (d) of paragraph 2 within; wheat prices therein shall refer to wheat actually in Minneapolis at times therein indicated, such wheat being what is known at Chamber of Commerce, Minneapolis, as spot or cash wheat delivered, such closing prices being fixed daily (except Sundays and holidays) by said Chamber of Commerce. Such closing prices as shown by Daily Market Record of Minneapolis shall be conclusive unless proven materially erroneous. No. 1 northern shall refer to a certain grade of wheat commonly known by that name in said Chamber of Commerce and fixed from time to time in Minnesota. In case of seller's election under said subdivision (d) the said 1 cent per bushel and 4 cents per bushel become fixed debits against buyer, carrying charges paid a fixed credit in his favor and difference in wheat prices is debited against him in case of a decline, and credited to him in case of a rise in price of wheat, such decline or rise being determined by multiplying the difference in prices of wheat on dates mentioned by the number of bushels mentioned. Under subdivision (f) of paragraph 9 this mode of calculation is applied to all flour unshipped under this contract, even though there may be flour on which shipping directions are not due. Paragraph 2 within shall apply only to flour and also feed, if any (both or either) remaining unshipped by reason of buyer's failure or refusal to furnish shipping directions in accordance with paragraph 1, except that the mode of calculation set out in said subdivision (d) shall apply, as above, under said subdivision (f). Sum allowed seller in said subdivision (d) is on account of decline in price of wheat, if any, and such other damage, expense and loss as may result by reason of buyer's default. Nothing herein shall require sum in said subdivision (d) set out. In fixing damages as seller to prove any actual loss in order to recover in said subdivision (d) the desire is to agree upon a certain mode of calculation since seller's actual loss cannot be predetermined, would be difficult of ascertainment and a matter of argument, and said mode is an equitable general rule for measurement of seller's prospective actual loss. This contract is for purchase of goods to be manufactured.”

That plaintiff was at all times between September 15, 1917, and the 2d day of November, 1917, when the plaintiff terminated the contract, ready, able, and willing to perform and carry out its part of this contract, and the plaintiff performed such contract except in so far as performance has been prevented of execution by the conduct of the defendant; that on October 30, 1917, plaintiff received from defendant a letter as follows:

“10/29/17.

Sheffield-King Milling Co., Minneapolis, Minn.___Gentlemen: In reply to yours of Oct. 27th will say I will not remit you anything, but will cancel the contract for new wheat flour contract made May 7th, and effective after Sept. 15th to Jan. 1st, 1918.

I am satisfied to let the court decide what you are entitled to by my cancelling this contract.

+----------------------------+
                ¦Yours truly,¦F. S. Jacobs.” ¦
                +----------------------------+
                

That by said letter the defendant intended to and did repudiate and cancel the contract of sale between the parties, within the meaning set out in said contract; that on November 2, 1917, pursuant to the terms of said contract, the plaintiff elected to and did treat the conduct of the defendant as a breach by the defendant of his contract, and did then on said day immediately terminate the contract in accordance with its provisions. In response thereto the plaintiff, on the 2d day of November, mailed the...