Wenger v. Marty

• Decision Date: 17 April 1908
• Parties: WENGER v. MARTY.
• Court: Wisconsin Supreme Court

135 Wis. 408

116 N.W. 7

WENGER

v.MARTY.

Supreme Court of Wisconsin.

April 17, 1908.

Appeal from Circuit Court, Green County; George Grimm, Judge.

Action by Alfred Wenger against Jacob Marty to recover wages. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The defendant, being a manufacturer and dealer in cheese at Brodhead, Wis., and having several tributary local cheese factories, entered into a written agreement with the plaintiff whereby, from April 1, 1905, to April 1, 1906, he engaged the plaintiff “as cheese-maker.” The contract provided for supply of tools and machinery by defendant, and return thereof by plaintiff unimpaired; also that defendant should provide the necessary supplies and materials; that plaintiff should receive milk from the farmers, and supply any additional help he might need; that he should keep tools clean and in good condition, and keep factory and cellar clean; that he should have use of the factory as a residence, and cheese and milk for the use of his family. The plaintiff further “agrees to make Limburger cheese, or cheese whenever so desired by the party of the first part. The cheese-maker also agrees and binds himself especially to do the cheese-making in a clean, good, and workmanlike manner to the best of his ability, to tend and cure the cheese properly until fully cured or until requested by the party of the first part to pack and ship the goods. He also agrees to take care of the cheese until all of the season's product has been ordered away by the party of the first part, and in general binds himself to do everything required for the operation of a cheese factory, even if not especially mentioned in this contract.” The defendant agreed to compensate the plaintiff by paying him 75 cents per 100 pounds of Limburger cheese manufactured by him. Appended to the contract, which was upon a printed blank, was the paragraph: “Party of the second part (plaintiff) also agrees to stand good for any loss or damage on bad cheese if caused through his negligence.” Plaintiff remained throughout the year and manufactured Limburger cheese, of which 42,302 pounds was taken by defendant into his warehouse at Brodhead and sold by him. Payments were made to plaintiff from time to time as his living expenses required, amounting to about $245, so that there would have been due him at the contract rate of compensation about $46. The payments never had reference to any specific deliveries of cheese nor to the total amount earned at the time they were made, being mere general advances. Plaintiff brought this suit to recover the balance of compensation. Defendant interposed counterclaim alleging that plaintiff, through lack of skill and negligence, spoiled a large amount of cheese by reason of doing his work in a negligent, unskillful, and unworkmanlike manner, to the damage of the defendant in the sum of $949.71, and also that, through his lack of skill and negligence, he caused injury to one of the appliances of the factory to the amount of $50, for both of which recovery was prayed. The jury found a general verdict in favor of the plaintiff for the undisputed amount of the balance of compensation at the contract rate, disallowing the counterclaims entirely. From judgment entered on this verdict, the defendant appeals.William H. McGrath and William Smith, for appellant.

J. L. Sherron, for respondent.

DODGE, J. (after stating the facts as above).

The first error assigned is the exclusion of evidence of plaintiff's statements made to the defendant before the contract was entered into as to the measure of his skill and ability as a cheese-maker. The contract industriously added as a measure of the plaintiff's duty his own ability. Without such element it would have been his contract duty to exercise the skill, diligence, and care of an ordinarily competent and careful cheese-maker; but that duty was either limited, confirmed, or increased by his agreement that the work should be done “to the best of his ability.” If both parties had known at the time of the making of the contract that plaintiff was a novice in the trade, this phrase might well mean that the devotion of such skill and ability as he possessed should satisfy the contract, although not equal to that ordinarily exercised. If, on the other hand, both parties met upon the understanding that plaintiff was an extraordinarily skillful man, it could have no such relaxing effect, and might even require a higher degree of diligence and skill. Hence the term was ambiguous. No court can know without evidence what is the measure of an individual's skill any more than it can know the length of his foot or arm. Hence extrinsic evidence was admissible to identify the standard of measurement thus referred to by the contract; in other words, to identify the thing to which the contract applied. Railway Co. v. Railway Co., 113 Wis. 161, 170, 87 N. W. 1085, 89 N. W. 180;Rib River Lumber Co. v. Ogilvie, 113 Wis. 482, 89 N. W. 483;Merrill v. Best, 116 Wis. 121, 92 N. W. 555;Excelsior Wrapper Co. v. Messinger, 116 Wis. 549, 93 N. W. 459;Perkins v. Owen, 123 Wis. 238, 245, 101 N. W. 415;Edwards v. Wisconsin Investment Co., 124 Wis. 315, 319, 102 N. W. 575. Therefore error was committed in excluding the evidence of the ability which the plaintiff had, which evidence consisted of his own declarations; as also evidence of the understanding and knowledge of the parties as to the extent of that ability at and before the making of the contract. We cannot think this error harmless, for the charge carried to the jury the same ambiguity apparent on the face of the contract. They were told that plaintiff's duty was performed if he did the cheese-making in a good and workmanlike manner to the best of his ability, and they were further instructed as to the effect of his negligence in making him liable for loss and damage on bad cheese in such immediate connection with this phrase “best of his ability” that they must have understood that he would be free from...