Opinion
May 8, 1951 —
June 15, 1951.
APPEAL from a judgment of the circuit court for Rock county: HARRY S. Fox, Circuit Judge. Affirmed.
For the appellants there were briefs by Jeffris, Mouat, Oestreich, Wood Cunningham, and oral argument by Robert C. Lovejoy, all of Janesville.
For the respondent there was a brief by McGowan, Geffs, Geffs Block of Janesville, and oral argument by Jacob Geffs.
An action was commenced on January 21, 1948, by Sylvester Thayer, plaintiff, against Charles W. Hyne and Homes, Inc., a corporation, defendants, to recover money paid to apply on the purchase price of two houses.
The action was tried to the court without a jury. From judgment for $5,318.66 entered on July 18, 1950, in favor of plaintiff, defendants appeal.
Defendant Hyne had planned to organize a corporation, to be known as "Homes, Inc.," to engage in business under a contract with Adirondack Log Cabin Company, Inc., of New York, hereinafter referred to as "Adirondack." The organization of the corporation was not completed.
Defendant Hyne entered into a contract with Adirondack on November 23, 1946, by which he as "distributor" was given "the exclusive right to distribute Adirondack Log Cabin buildings" in certain specified counties in Wisconsin. The contract also provided:
"It is understood and agreed that the distributor is not the agent or partner of the company, and has no right or authority to assume or create any obligations of any kind, express or implied, on behalf of the company, or to bind the company in any respect whatever."
On September 20, 1947, plaintiff wrote to the Adirondack company requesting information and literature as to the type of houses which the company offered, and also stating that he was in the retail lumber business, did some building, had about fifty vacant lots and could buy more.
On September 26th the company directed a letter to Thayer, as follows:
". . . We have a distributor in your area — Homes, Inc., at 10 West Main street, Evansville, Wisconsin. We suggest you contact them and possibly you will be able to work out a subdistributorship that will be to your mutual advantage. They are qualified to give you all the information you require on the selling and erection of our homes . . . ."
Plaintiff contacted defendant Hyne on October 4, 1947, and placed a written order for one house upon a form headed "Homes, Inc." directing the order to Adirondack Log Cabin Company, Inc., at $4,198.24, terms "fifty per cent deposit with order. Balance sight draft on customer's bank or lending institution." Delivery date was specified, October 20th or sooner. Plaintiff gave defendant Hyne a check for $400 which, together with a sight draft for $1,699.12 given on October 8, 1947, was to cover the fifty per cent of the purchase price.
There is some conflict in the testimony as to the next transaction. Plaintiff testified that when he gave defendant the draft he told him that he would have to cover it as it was not covered in the bank at the time, that he would do it just as soon as he returned from the North, and requested defendant Hyne to hold it and that Hyne said he would, but that Hyne put the draft in the bank in violation of their understanding. On October 17th Thayer gave Hyne a check for $2,334 which Hyne cashed. The draft which plaintiff had given to defendant was protested for nonpayment on October 18, 1947.
Defendant did not mail plaintiff's first contract to Adirondack until about October 20th.
On October 29, 1947, plaintiff ordered a second house and paid defendant $1,811.88, delivery to be made in "three weeks from date or four weeks latest."
Neither house had been delivered by December 1, 1947, when Thayer rescinded the contracts and demanded return of his money.
The first question raised presents an issue of fact: Did defendant Hyne bind himself personally to perform the contract? The trial court found that he did, and we must follow the finding unless the decided preponderance of the evidence is to the contrary. There is a dispute in some of the testimony, and because of the findings we must assume that the facts relating to such issues are as contended by respondent. Nichols v. Galpin, 186 Wis. 485, 202 N.W. 153; In re Village of Chenequa, 197 Wis. 163, 221 N.W. 856.
The testimony of the plaintiff — some of it disputed, but none of it incredible — which supports the determination of the trial judge that defendant intended, and did bind himself personally, is the following:
By the terms of his contract with Adirondack, quoted above, he understood that he could not bind the latter in any respect; the blanks which contained plaintiff's orders for the houses were headed "Homes, Inc., 10 W. Main st., Evansville, Wisconsin," (defendant's proposed corporation); defendant never advised plaintiff that he was dealing with the defendant, except as a principal; when plaintiff indicated that he wanted prompt delivery defendant told him that he might have it, as though he were in control of the matter; at an adverse examination of the defendant he testified that of the remittances made by the plaintiff he forwarded to Adirondack the amounts thereof less his commissions. He testified further that when he made his contract with Adirondack he was required to subscribe to the purchase of four houses and make a substantial deposit against such purchase, and that against that deposit he still had a credit at the time of the transactions with the plaintiff. He was asked at the adverse examination to produce the checks showing the remittance of the plaintiff's payments but the record does not disclose that he ever produced them for examination by the court. Plaintiff testified that after some delay in delivery he spoke to defendant and remarked that a friend of his had investigated Adirondack and found that they were not reliable; that defendant responded, "that is not true, they are" and that defendant further said, "in the first place you are dealing with me, I am the distributor in the state of Wisconsin." Defendant at his adverse examination testified that after failure to deliver he had never written Adirondack requesting them to return plaintiff's money but that in a conversation with the plaintiff he told the latter that he would "attempt to sell the houses,"
We are unable to say that the decided preponderance of the evidence is against the court's finding.
Defendant contends that plaintiff had not sufficient justification for rescission of the contracts. When the orders were placed, the plaintiff indicated rather clearly that he desired prompt delivery. His testimony and the reply of the defendant to his complaint that delivery had not been made; that he, defendant, did not blame him if he canceled his contracts, establish that fact. The first contract called for delivery on "October 20th or sooner;" the second made on October 29, 1947, called for delivery to be made in "three weeks from date or four weeks latest." Plaintiff testified that defendant told him when the first order was placed "he would confirm the. order and put it through at once." Plaintiff rescinded on about December 1st.
"Under different situations, different tests of what constitutes a material and substantial default may be used. That which under one set of circumstances may be considered too trivial to justify rescission, under other circumstances may be held to be so material as to prevent substantial performance. Dudley v. Wye, 230 Mass. 350, 119 N.E. 790." Illges v. Congdon, 248 Wis. 85, 95, 20 N.W.2d 722, 21 N.W.2d 647.
It is generally known that in this part of the country the cost of building increases with the increasing severity of our winter weather. The trial court undoubtedly gave consideration to this fact and to the fact that the parties had it in mind when they stipulated for time of delivery. Apparently the plaintiff bought the houses for investment purposes; delay in delivery necessarily effected a delay in return upon his investment.
After the delay which had occurred and when, after December 1st, Adirondack advised plaintiff that it had just begun processing the houses, plaintiff was fully justified in rescinding the contract. The trial court's conclusion that time was of the essence is fully warranted by the facts found.
Defendant contends that the delay was caused by the fact that plaintiff's draft for $1,699.12 given as a part payment on the first order failed to clear. The court apparently believed plaintiff's testimony to the effect that when it was given he told defendant to hold it, that he was leaving for the North and that upon his return would make a deposit to the credit of his bank account to meet the draft.
Defendant contends that since plaintiff made no demand for interest in the prayer of his complaint, the court erred in allowing that item. Plaintiff's claim was liquidated. He is entitled as a matter of law to interest from the time of defendant's breach, and hence it was unnecessary to allege the same as a fact or demand it in the prayer of his complaint. Whereatt v. Ellis, 68 Wis. 61, 30 N.W. 520, 31 N.W. 762.
By the Court. — Judgment affirmed.