Woodall v. Democrat Printing Co.

• Decision Date: 13 May 1947
• Citation: 250 Wis. 348,27 N.W.2d 437
• Parties: WOODALL v. DEMOCRAT PRINTING CO.
• Court: Wisconsin Supreme Court

250 Wis. 348

27 N.W.2d 437

WOODALL

v.DEMOCRAT PRINTING CO.

Supreme Court of Wisconsin.

May 13, 1947.

Appeal from a judgment of the Circuit Court for Dane County; Herman Sachtjen, Judge.

Affirmed.

Action by Wilford P. Woodall, a sole trader doing business as W. P. Woodall Company, against the Democrat Printing Company. From a judgment against the defendant for less than the plaintiff claims, entered November 14, 1945, the plaintiff appeals. Upon motion for review the defendant contends that the findings and judgment are contrary to the evidence and the complaint should be dismissed. The controlling facts are stated in the opinion.

ROSENBERRY, C. J., and FRITZ and FAIRCHILD, JJ., dissenting. Hill, Beckwith & Harrington, of Madison, for appellant.

Spohn, Ross, Stevens & Lamb, of Madison, for respondent.

FOWLER, Justice.

The complaint alleges nine causes of action each to recover $250 damages for one of several successive alleged breaches by defendant of a contract made by it with the plaintiff for a single use of a mailing list furnished by plaintiff to defendant for mailing out to persons on the list a booklet printed by defendant containing advertising matter. One Louis Galter got up the booklet which he called ‘War Plant Bulletin’. It was designed to be mailed by him at intervals to persons engaged in metal working industries who might desire the articles described in the Bulletin. Galter applied to the plaintiff who compiled and furnished mailing lists to furnish him with a list of names of such persons with their addresses to whom the Bulletin might be mailed for advertising purposes. While some correspondence preceded it, the first contact between Galter and Woodall relating to furnishing a list of names was a telephone conversation in which Galter told Woodall that what he wanted was to get 25,000 names, four sets of labels, one original and three sets of carbons. Woodall told him that would constitute an outright purchase. After this talk Woodall sent a telegram offering to supply 25,000 names typed on gummed labels and three carbons at a total cost of $1,250. In reply to the telegram Galter wrote a letter in effect saying that the price was too high and asking him to refigure the cost, saying that if the price could be put between $500 and $600 he, Galter, thought he could send an order. This letter closed with the statement that ‘we will never resell a copy of your list.’ Woodall sent a long letter in reply, that resulted in another telephone talk between Woodall and Galter. Woodall asked Galter how he proposed to pay and how he was to assure ‘that the names would not be pirated.’ Galter replied that the Democrat Printing Company and the head of that company, Mr. Brandenburg, were backing the enterprise and said they would issue the orders to plaintiff and pay the bills. Woodall told Galter that if the Democrat Printing Company and Brandenburg would issue the order and would give ‘absolute assurance’ in writing that the list would not be pirated or used for any other purpose than one mailing he, Woodall, would ‘go ahead.’ Following this talk Woodall received a letter from the defendant which is quite specific and embodies the contract for the first gummed list and copies. This letter included this provision: ‘This is our assurance that we will not sell or copy these labels, nor use them for any other purpose than mailing the first issue of War Plant Bulletins.’ It fixed the total number of labels at 25,000 and the price at $10 per thousand ‘or $250 for this order.’ Woodall by letter to Brandenburg objected to one provision of Brandenburg's order, but after talking with Galter, Woodall sent a letter to Brandenburg saying Galter had straightened out the matter to which he, Woodall, had objected and Woodall was proceeding with the work of furnishing the list. Following this the first batch of labels was sent to the defendant and only proper use of it was made by the defendant, and the $250 cost was paid by defendant direct to Woodall.

At the conclusion of this contract not only the plaintiff and Galter, but the defendant contemplated the furnishing of lists by the plaintiff for subsequent mailings of the Bulletin. This is evidenced by the following statement in a letter by Brandenburg to Woodall concluding: ‘We want to work with you in a mutually helpful way and to look forward to a long and pleasant association.’

The negotiations between the plaintiff and defendant covering the second list of 25,000 names began with a letter from Galter to Woodall saying ‘it appears we'll need an addressing (list) by November 7, the same specifications and quantity as was specified previously.’ The ‘same specifications' obviously refers to those in the contract covering the first list. This letter further said: ‘As previously you will bill the Democrat Printing Co. and ship the completed job to them. A copy of this letter is being sent to Madison. Should you wish to have a confirmation of this order from the Democrat Printing Co., please wire them so no time will be lost in your getting under way to deliver the job on time.’ In compliance with the statement regarding confirmation, Woodall sent a telegram to Brandenburg saying: ‘Please air mail confirmation of order for readdressing list and include same assurance as last time that names will not be copied.’ To this the defendant answered by letter: ‘Please furnish by post 25 M. addressed labels per detailed order of Mr. Galter. This is merely confirmation and guarantee of payment as I don't know details of your deal (with Galter)-presumably same in all respects as last order.’ Pursuant thereto 25,000 names were sent and billed to defendant and paid for by defendant direct to plaintiff. This completed the contract between the parties respecting the second 25,000 list.

By the contract so made the plaintiff was to deliver to defendant a gummed list containing names of persons with proper addresses. The defendant was to cut the names with accompanying addresses from the list and attach them to the publication before mailing. The use made by the defendant was by the contract restricted solely to such single use. Pursuant to this contract the plaintiff sent to defendant a second gummed list. After receiving the second gummed list the defendant let Galter take it with him to Chicago and keep it there ten days, ostensibly to deduct from it names of persons from whom the publication first sent had been returned to him as not delivered. No subsequent lists were ordered by defendant from the plaintiff. All subsequent mailings by the defendant were made from lists furnished by Galter practically all as the trial court found copied by Galter from the second gummed list, which defendant had let Galter take to delete names as above stated. The first cause of action and each subsequent cause of action for $250 was based on the third and subsequent mailings of the Bulletin by defendant from a list sent defendant by Galter.

The court found that the number of mailings made by the defendant subsequent to the second was nineteen; held that the third mailing by defendant and each subsequent mailing constituted a breach of the contract between plaintiff and defendant made for furnishing the second gummed list; held that this third mailing constituted a conversion by the defendant of the second gummed list; that the list was worth $1,250 and that plaintiff was entitled to recover that sum less the cost to plaintiff of making and sending the list to defendant; and held that the defendant was entitled to apply the $250 paid by it to plaintiff for the second gummed list and so applied it and gave plaintiff judgment for $1,000 less such cost and interest on the difference as damages.

The plaintiff contends that upon the court's theory of breach of contract and conversion of the list the $250 paid for the second list was improperly applied and that the true measure of damages was $250 for each of the successive breaches of the contract less the expense the plaintiff would have been put to had he furnished a gummed list to the defendant to be used in mailing out the subsequent Bulletins.

The defendant contends under a motion to review that the trial court erred in holding the defendant's use of the second list furnished it by the plaintiff violated his contract and that the complaint should have been dismissed; but that if the court was right in holding that the defendant violated his contract the measure of damages applied by the court was correct and the judgment should be affirmed.

The questions for determination thus are: Did the trial court correctly determine that (1) the use of the second list furnished by plaintiff to defendant was so restricted by the contract between the parties to it as was the first; if so, (2) did letting Galter take the second gummed list for the purpose of correction constitute a breach of the second contract; and if so, (3) did letting Galter take the list in view of his copying it and furnishing from the copy the subsequent mailing lists to defendant impose liability on the defendant for its value; and if so (4) did the court properly allow the $250 credit for payment by defendant to plaintiff for the second list; or (5) as contra to (2), (3) and (4) above, is plaintiff entitled to damages for each of the successive mailings of the pubcation after the first.

The trial court concluded that the contract for the second list was in all respects like the first and that the use to be made of it by the defendant was limited to a single mailing. These conclusions were based on the judge's determination of the sense in which certain words particularly ‘we’ and ‘use’ were used in the defendant's letter to the plaintiff relating to the first contract. While the construction of a contract when it is not ambiguous is a matter of law for the court to determine, when there is ambiguity the sense in which words therein are used is a question of fact. Becker...