T. B. Scott Lumber Co. v. Hafnerlothman Manuf'g Co.

• Decision Date: 17 December 1895
• Citation: 65 N.W. 513,91 Wis. 667
• Parties: T. B. SCOTT LUMBER CO. v. HAFNERLOTHMAN MANUF'G CO.
• Court: Wisconsin Supreme Court

91 Wis. 667

65 N.W. 513

T. B. SCOTT LUMBER CO.

v.HAFNERLOTHMAN MANUF'G CO.

Supreme Court of Wisconsin.

Dec. 17, 1895.

Appeal from circuit court, Lincoln county; Charles V. Bardeen, Judge.

Action by the T. B. Scott Lumber Company against the Hafner-Lothman Manufacturing Company for breach of contract. Judgment for plaintiff, and defendant appeals. Affirmed.

The plaintiff was a lumber manufacturer and dealer. It had in its yards at Merrill, Wis., a quantity of lumber piled for the classes known as “C select and better,” and “shop and flat.” Mr. Green, an employé of defendant, having authority to examine and negotiate for the purchase of lumber, visited plaintiff's place of business on behalf of defendant, and made a casual examination of the lumber referred to, a small amount being taken from the piles for that purpose. He wanted to make a purchase on behalf of his company on grades, but was informed plaintiff desired to sell “pile run.” At this time two car loads of the lumber were ordered, and thereafter shipped to defendant, and unloaded and examined at its yards in Oshkosh. Thereafter, and about two weeks after Mr. Green's visit to plaintiff's yards, and without any knowledge of the lumber except what was then obtained, and the examination of the car loads referred to, a contract was made between plaintiff and defendant as follows: “Oshkosh, Wis., Jan. 16th, 1892. T. B. Scott Lumber Co., Merrill, Wis.--“Dear Sirs: Please ship the following lumber to Foster-Hafner Mills at this city, and invoice the same to Hafner-Lothman Manufacturing Company of St. Louis, Mo., in duplicate to this office, viz.: 200,000 feet 1 1/4 inch, piled for C select and better, to be thick enough to S. 2 S. 1 1/8 inch; 275,000 feet 1 1/2 inch, piled for C select and better, to be thick enough to S. 2 S. 1 1/8 inch; 25,000 feet 2 inch, piled for C select and better, to be thick enough to S. 2 S. 1 3/4 inch; 230,000 feet 1 1/4 inch, piled for shop and flat, to be thick enough to S. 2 S. 1 1/8 inch; 1,880,000 feet 1 1/2 inch, piled for shop and flat, to be thick enough to S. 2 S. 1 3/8 inch; 180,000 feet 2 inch, piled for shop and flat, to be thick enough to S. 2 S. 1 3/4 inch; in all, 2,790,000 feet. Total at the uniform price of $21.25 per M. feet, f. o. b. cars here. All the above lumber to be of the cut of 1891, and now being in piles at your mill-yard premises at Merrill, Wis. And begin shipping the above lumber on or before January 20th, 1892, and the final shipment to be made not later than June 1st, unless by mutual consent. We will make payments for the same as follows, viz.: All the lumber shipped on this order during each of the months of January, February, March, April, and May, 1892, shall be considered as shipped on the last days of these months, and we will give our acceptance at sixty days on the last day of each month, for the total amount of the shipment of each of the said months; it being understood that we do not have the privilege of the usual cash discount, unless by your consent. It also being understood that worthless mill cull lumber is not to be accepted on this order. The above order is accepted for the T. B. Scott Lumber Company by Z. J. Graham. Hafner-Lothman Mfg. Co., per C. Foster, V. Pres.” Thereafter, during the months of January, February, and March, plaintiff shipped, under the contract, 74 car loads, 68 of which were received and unloaded by defendant, and the balance rejected, which plaintiff was obliged to ship to Milwaukee for sale. On the 26th day of March, 1892, defendant notified plaintiff that it would not receive any more lumber, and thereupon plaintiff notified defendant that it would proceed to resell the remainder on the best terms obtainable, and hold defendant liable for the loss. Plaintiff claims that the lumber was purchased as piled in the yard at the prices stipulated in the contract. Defendant claims that it purchased strictly on grades, viz. “C select and better,” and “shop and flat,” and that, as plaintiff insisted on shipping on the theory that the purchase was made pile run, worthless mill culls only excepted, it had a right to rescind the contract, which it did. The trial court found in plaintiff's favor, and awarded $50 for extra expense of selling lumber shipped to Milwaukee; and $1 per 1,000 on all lumber not shipped up to the time of defendant's refusal, as damages. Judgment was rendered in plaintiff's favor, from which this appeal was taken.Finch & Barber and Bouck & Hilton, for appellant.

Curtis & Reid and Silverthorn, Hurley, Ryan & Jones, for respondent.

MARSHALL, J. (after stating the facts).

There are three questions only presented on this appeal, and they will be considered in their order.

1. Was it intended that the respondent should sell and appellant should buy lumber to the amount designated in the contract, to be taken from the piles in respondent's yards, rejecting only worthless mill culls? The intent of the parties at the time of making the contract must govern, and that must be sought out from the instrument itself. The question is, what is the meaning of the words used? Weiseger v. Wheeler, 14 Wis. 101;Farmers' Loan & Trust Co. v. Commercial Bank, 15 Wis. 424;Johnson v. Insurance Co., 39 Wis. 87. This is subject, however, to another rule,--that, if the terms of the contract are uncertain, resort may be had to the situation of the parties and the circumstances at the time of making the contract, to enable the court to determine the proper construction to be given to it. Nilson v. Morse, 52 Wis. 240, 9 N. W. 1. Now, the instrument in question, though in the form of an order accepted, constitutes a written contract, subject to all the rules governing such instruments. Defendant agreed to buy and plaintiff agreed to sell a certain amount of lumber, “piled for C select and better, and shop and flat.” Now, it is a rule of construction,...