Witt v. Realist, Inc.
| Decision Date | 27 November 1962 |
| Citation | 18 Wis.2d 282,118 N.W.2d 85 |
| Parties | Wilhelm WITT, also d/b/a Iloca Camera, Wilheim Witt, Hamburg, Germany, Appellant, v. REALIST, INC., Respondent. |
| Court | Wisconsin Supreme Court |
Wengert & Spenner, Milwaukee, for appellant.
Foley, Sammond & Lardner, Marvin E. Klitsner, Richard H. Miller, Milwaukee, for respondent.
The several issues involved in this case are as follows:
1. Is the plaintiff the real party in interest?
2. Was there a breach of the camera-purchase contracts either as to (a) required purchases of each type during the period from May 1, 1957, through December 31, 1958; or (b) sales by defendant outside of United States?
3. Was plaintiff denied a fair trial because he was denied a fair chance to brief and to argue orally his motion for judgment and present his cause to the court?
4. Was the trial court correct in dismissing defendant's counterclaim on its merits without costs but with a right in defendant to reassert it in any remand, rehearing or retrial of the merits of the case and in any court whatsoever?
5. Was there error in the trial court allowing defendant costs and attorney's fees of $5,000?
We will consider each of these issues in the order stated.
1. Is the plaintiff the real party in interest? The defendant claims that the plaintiff is not a real party in interest under sec. 260.13 of the Wisconsin Statutes. 1 He bases this contention upon the fact that the plaintiff, on August 18, 1959, assigned his claim for damages against the defendant to a Mr. Horn. After this, on May 30, 1960, (subsequent to the commencement of this action on November 10, 1959) Mr. Horn in turn made a similar assignment to a firm known as 'AGFA'. Still later, there was a reassignment on December 16, 1960, from AGFA back to the plaintiff. All of these assignments took place in Germany. The defendant claims that since the second and third assignments did not take place prior to the commencement of the action they were ineffective and that because of the legal effect of the original assignment on August 18, 1959, the plaintiff is not the real party in interest. The initial assignment reads as follows (emphasis ours):
'Assignment
'We have a claim for damages against:
'David White Company, Milwaukee, Wisconsin, USA, and Realist Inc., Milwaukee, Wisconsin, USA, on account of which we will sue in the United States of America.
'We herewith assign the proceeds of the claim which will be adjudicated in favor of us by the final judgment in this lawsuit to:
'Mr. Rolf Horn, Hamburg 36, Neuerwall 35, as security for all loans which he claims and might claim either personally or as owner of his firms or the firm Horn Bekleidungsindustrie G.m.b.H. against us.
'Hamburg, August 18, 1959
'Iloca Camera
'Wilhelm Witt
'Rolf Horn
'Horn Bekleidungsindustrie G.m.b.H.
'Horn.'
Because the other two assignments were executed and delivered after the commencement of this action on November 10, 1959, they are of no consequence in this litigation. We are left to consider the effect only of the above quoted assignment of August 18, 1959. The law of the place of assignment (Germany), if proven, governs not only the validity of the assignment but the effect of the assignment as between the assignor and assignee. 2
Defendant contends that whether or not the plaintiff is a real party in interest is to be determined by Wisconsin law. The defendant cites authorities to the effect that all matters relating to remedy, conduct of trial, and procedural matters are governed by the law of the forum. 3
The law of the forum does apply to procedural matters. But the effect of an assignment on the rights of the assignor and assignee is a matter of substance to be governed by the law of the place of the assignment, if proven. 4
Although sec. 260.13, Stats., is procedural in the sense that it provides that one has to be a real party in interest in order to sue, the question is substantive as to the right of a particular plaintiff to sue in the face of an assignment. Thus, we conclude that the German law, as the law of the place of contracting or of the assignment, governs as to the effect of that assignment on the substantive rights of the assignor (Witt) or the assignee (Horn) to sue on the claim.
The question therefore is what are the rights of the respective parties under German law in view of the assignment. There was disputed testimony to the effect that the plaintiff had recently undergone a compromise proceeding with his creditors in Germany, the express purpose of which was to avoid bankruptcy. In any event, there was also testimony that under German law this proceeding did not affect the plaintiff's continued capacity to sue on this claim.
Foreign law is not a matter on which this court or the trial court is prepared to take judicial notice. 5 Foreign law is to be proven as are other facts on the trial. The plaintiff did meet his burden of proving what that law was on the subject of the effect of the attempted assignment.
Plaintiff made several attempts to prove the applicable German law through the expert testimony of Dr. Fritz G. Lorenz, a former member of the German Supreme Court. Every attempt was met by an objection and the trial court sustained the objections. In so doing he was in error. 6 The error was not prejudicial since Exhibit 23 (made a part of the record by stipulation between the parties as per the stipulation and order settling the bill of exceptions, dated May 7, 1962), being the applicable German Statute and related annotations, establishes German law. 7
Examining the assignment of August 18, 1959, in the light of the German statute and annotations, the plaintiff (assignor) expressly stated 'we [Witt] will sue' and further the proceeds of the claim are assigned 'which will be adjudicated in favor of us by the final judgment in this lawsuit.' This language clearly indicates an intention of the parties that the plaintiff as assignor was permitted, under German law, to sue on the claim and to continue such litigation.
We conclude, therefore, that the plaintiff was a real party in interest under sec. 260.13, Stats. Accordingly, the finding of fact (No. 2), conclusion of law (No. 2), and the related part of the judgment should be stricken.
2. Was there a breach of the camera-purchase contracts either as to (a) required purchases of each type during the period from May 1, 1957, through December 31, 1958; or (b) sales by defendant outside of United States?
A. The Stereo Camera Contract. The parties entered into a written contract on July 21, 1954, relating to two types of Stereo cameras, A and B. As pertinent here the parties (under paragraph 2) agreed that Witt was to deliver to the defendant all of the cameras the defendant 'may require' after January, 1955, and during the life of the contract (to be terminated on December 31, 1957). Such deliveries were subject to express limitations, which provided that beginning January, 1955, Witt 'shall be prepared to deliver' to White, and White 'shall be prepared to accept delivery' at the rate of 1000 type A per month and 500 type B per month. White reserved the right on notice to accelerate deliveries up to 25 percent by giving notice to Witt, provided deliveries didn't exceed specified larger quantities. White also reserved the right on notice to reduce deliveries (not more than 30 percent) but not below the minimum quantities of 1000 A per month or 500 B per month.
Paragraph 16 said nothing whatsoever about quantities but specified:
The original contract thus set a minimum contract obligation for defendant to accept delivery of 500 B per month and 1000 A per month. Plaintiff's contention that 'minimums' are set by paragraph 16 and not paragraph 2 is totally wrong; paragraph 16 deals with 'liquidated damages' in the event minimum quantities are not purchased.
But there were amendments to the agreement.
First Amendment. On March 18, 1955, a change was agreed to based on the proposition that the defendant wanted to be relieved of any obligations to buy type B cameras and, to the extent relieved, defendant in exchange agreed to buy a correspondingly increased number of type A. Paragraph 16 was added to and the change made was to apply only when the minimums under paragraph 2 were not met. The amended paragraph merely made it clear that if Witt was called on to deliver less B's, then White would take that many more A's (up to 1500). The parties agreed that if Witt failed to meet requirements and fell off on deliveries of A's below 1500, then he would lose $2 on the price of each camera. Thus his liquidated damages would be reduced and the only way he could be assured of $3,000 liquidated damages would be where the defendant took 1500 A's (instead of 500 B's and 1000 A's) and Witt was actually able to deliver them. The original unit contract price for type A was $23. The net effect of this change was that if White failed to perform and take delivery on his minimum of 1500 cameras, Witt would receive liquidated damages of $2 for each camera delivered. Paragraph 2 was not superseded or replaced by this change, but made more explicit.
Second Amendment. There was a letter of September 7, 1955, covering the situation...
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