Menasha Wooden Ware Co. v. Mitch-Elstetter

The main contention of the defendants is that the court erred in construing the contract to call for the delivery of specific quantities of materials, and especially as to the 1,200 cords of twenty-six-inch bolts equal to 2,400 cords of thirteen-inch staves. It is argued that inasmuch as the evidence shows that Mr. Noble, who represented the plaintiff, went to Seymour before the contract was entered into and inspected the material purchased, it was a sale and purchase of whatever material was there and not of specific quantities; that the quantities set out in the contract, especially as to the 2,400 cords of thirteen-inch staves, were mere estimates. It will be observed from the findings of the trial court that it *489did not construe tbe contract to require tbe defendants to furnish 2,400 cords of tbirteen-incb staves, but that it did require them to furnish 1,200 cords of twenty-six-inch bolts. In holding that the defendants were required to deliver the quantities specified in the contract, the trial court was undoubtedly right. A mass of raw material, amounting in value to about $10,000, aside from the machinery, was purchased. No one by a mere inspection, no matter how minute, could estimate the exact amount thereof, and hence the amounts bought and sold were inserted in the contract, and the quantities therein named became binding upon the parties. The plaintiff, having paid for the total quantities called for by the contract, was entitled to a delivery of the same, or, in case of a default in delivery of it, if it so elected, to a refund of the purchase price of the material not delivered. Ingram v. Rankin, 47 Wis. 406, 2 N. W. 755.

A great deal of evidence was introduced on the question as to whether or not the 1,200 cords of twenty-six-inch bolts made 2,400 cords of thirteen-inch staves. In our view of the case this becomes immaterial, because the trial court, as before stated, held the contract called only for the delivery of 1,200 cords of bolts. It is true that, in arriving at the number of cords of bolts actually delivered, recourse was had to the number of cords of staves delivered, but the trial court in reaching the amount of shortage in bolts did so solely upon the basis of what a cord of bolts as it existed in defendants’ yard at Seymour actually did produce in staves, and not upon the basis of what it might be claimed it should produce as per contract, namely, two for one. ‘So defendants were relieved from any warranty as to the number of staves that would be produced from the 1,200 cords of bolts and held only to the duty of delivering the 1,200 cords which the contract called for. They certainly are in no position to successfully attack such a construction of the contract. It is as favorable to them as the terms thereof will permit.

*490It is also urged, that tbe findings of the trial court are not supported by the evidence. The court found there was a shortage, as follows: 41 cords of staves at $3 per cord, $123; 150 cords of 26-inch bolts at $6 per cord, $900; 6 5-12 dozen candy pails at $1.25, $8.05; and in doing so it is evident the court did, as stated in its opinion, resolve every doubt in favor of the defendants. Not only are the findings supported by the evidence, but we think, from a careful perusal of it, that they are in accordance with the preponderance thereof. Defendants, therefore, fall far short of showing themselves entitled to a reversal of the judgment on that ground. Dcmbner v. McFarlin, 136 Wis. 515, 117 N. W. 1002.

By the Court. — Judgment affirmed.