The following opinion was filed May 14, 1912:
BabNes, J.
The defendant contends that the order for the lumber was never subscribed by the plaintiff as required by sec. 2308, Stats. (1898), because it was signed in typewriting and hence was void under the statute of frauds. The question is not material because of reasons hereinafter stated, but if it were, the signature is sufficient to meet the calls of the statute. Mezchen v. More, 54 Wis. 214, 11 N. W. 534; Dreutzer v. Smith, 56 Wis. 292, 14 N. W. 465; Finlay v. Prescott, 104 Wis. 614, 618, 80 N. W. 530; subd. 19, sec. 4971, Stats. (1898) ; sec. 4192, Stats. (1898); Cummings v. Landes, 140 Iowa, 80, 83, 117 N. W. 22; Herrick v. Morrill, 37 Minn. 250, 33 N. W. 849.
But it is argued that the contract is void under the statute of frauds because it was not signed by .the defendant. On October 4, 1907, the defendant shipped a carload of lumber to plaintiff under this contract and plaintiff accepted and received the same. This was a sufficient part performance to take the case out of the statute. Amson v. Dreher, 35 Wis. 615; Gano v. C. & N. W. R. Co. 66 Wis. 1, 27 N. W. 628, 838; Mason v. H. Whitbeck Co. 35 Wis. 164; Schmidt v. Thomas, 75 Wis. 529, 44 N. W. 771; Prairie Grove C. Mfg. Co. v. Luder, 115 Wis. 20, 89 N. W. 138, 90 N. W. 1085; Merriman v. McCormick H. M. Co. 96 Wis. 600, 71 N. W. 1050; J. H. Silkman L. Co. v. Hunholz, 132 Wis. 610, 112 N. W. 1081.
The defendant concedes the correctness of the legal proposition, but contends that under its letter of September 27th the carload of lumber which defendant delivered was not shipped by virtue of the written order, but, at best, under a proposed modification of such order, which if accepted would extend the time of delivery for five months from the date of the letter. We do not so construe it. At the time it was [349]*349written tbe defendant undoubtedly supposed tbat it was under a valid and binding obligation to fumisb tbe lumber under tbe terms of tbe written order.- Tbe letter stated tbat one carload of lumber would be shipped at once pursuant to request contained in plaintiff’s letter of September 25tb. It then went on to state tbat tbe contract was indefinite as to tbe time of delivery and gave some excuses for not having more of tbe stock sawed and suggested tbat an arrangement be made for extending tbe contract period of delivery. We agree with tbe trial court tbat tbe carload of lumber was shipped in unqualified compliance with tbe contract, and tbat the rest of tbe letter is an apology for not being able to ship promptly, and a plea for an extension of time.
Defendant next contends tbat there can be no recovery because plaintiff refused to pay for tbe carload of lumber which was shipped to it. This position is not tenable. There was nothing due on tbe purchase until tbe expiration of sixty days from tbe date of tbe invoice. By tbat time tbe defendant bad already breached its contract and it was apparent tbat tbe plaintiff would suffer considerable loss in consequence of such breach. Eurtbermore, tbe ease would seem to fall within tbe principle of Campbell & C. Co. v. Weisse, 121 Wis. 491, 99 N. W. 340, but it is unnecessary to pass on that question.
Tbe appellant urges tbat tbe court erred in refusing to give tbe following instruction:
“The court instructs you tbat this order only calls for 'No. 2 common and better.’ Under tbe law tbe defendant was entitled to determine and select tbe grades of lumber to fill this order, and tbe amount of lumber in each grade to be delivered, except tbat no lumber could be delivered tbat would grade lower than No. 2 common, and tbe material delivered would have to contain some lumber of a higher grade than No. 2 common.”
We think tbe instruction was incorrect as a matter of law, and would be irrelevant if it were correct in the abstract. As we read tbe order, tbe defendant did not have the right to [350]*350fill it by shipping No. 2 common and better lumber, unless it was free from heart or wane except a little on the corners that would turn off in the process of manufacture. It is true the court did not hold as a matter of law that this was the correct construction of the order, as it might well have done. It conceived that the order was ambiguous and allowed the jury to ascertain its meaning. This ruling was favorable to the defendant, and it would have been error had the court placed the construction contended for by the defendant on the order. Whatever right the defendant might have had to select the lumber which it agreed to ship, it did not see fit to avail itself of that right, but compelled the plaintiff to procure its stock elsewhere at an inopportune time, and we are only concerned with the question whether a fair and'judicious selection was made. This question will be alluded to later. Furthermore, we entertain serious doubt about the right of the defendant to fill this order with practically all No. 2 stock, putting in enough of the higher grades to make a mixture. It is unnecessary to discuss the question.
It is urged that the court also erred in refusing the following instruction:
“The court further instructs you that in this order the defendant was by law entitled to deliver, as No. 2 common, all lumber that would cut fifty per cent, clear, and as No. 1 common all lumber that would cut two thirds clear, under the rules of inspection adopted by the National Hardwood Association, without, however, considering wane or hearts on corners as a defect.”
This instruction was immaterial to the issues on trial. It was also incorrect. Under it a 4x4 which graded above No. 3 common would have to be taken by the plaintiff if it contained wane that could not be turned off in the process of manufacturing croquet balls, and likewise a piece of lumber that had heart near the middle of it, although it might be wholly worthless for the purpose for which it was purchased.
[351]*351Error is assigned because tbe witness Garton was permitted to testify that the 4 x 4’s ordered would make a grade of No. 1 common and better lumber and that the- No. 2 common and better called for by the contract would mean “about 5 % No. 2 common, 45 % No. 1, and 45 % firsts and seconds.” '
This testimony was offered to show the difference between a straight grade of No. 2 common and better and No. 2 common and better from which was excluded all pieces of lumber which had either wane or heart that would not turn off in the process of manufacturing croquet balls. If true, it showed that very little No. 2 common would come up to the specifications of the contract, and would justify plaintiff in buying a small amount of No. 2 common in the market. There was variance in the testimony as to the percentage of No. 2 common that would ordinarily be found in a log run of No. 2 common and better, running from thirty-three and one-third per cent, to seventy-five per cent. The plaintiff purchased only about eighteen per cent, of No. 2 common, and it was proper enough for it to show why such a large proportion of high-grade lumher was purchased. Under Mr. Garton’s evidence it is more difficult to find justification for buying so much No. 2 than for buying so little. It is very evident that if a large percentage of No.
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The following opinion was filed May 14, 1912:
BabNes, J.
The defendant contends that the order for the lumber was never subscribed by the plaintiff as required by sec. 2308, Stats. (1898), because it was signed in typewriting and hence was void under the statute of frauds. The question is not material because of reasons hereinafter stated, but if it were, the signature is sufficient to meet the calls of the statute. Mezchen v. More, 54 Wis. 214, 11 N. W. 534; Dreutzer v. Smith, 56 Wis. 292, 14 N. W. 465; Finlay v. Prescott, 104 Wis. 614, 618, 80 N. W. 530; subd. 19, sec. 4971, Stats. (1898) ; sec. 4192, Stats. (1898); Cummings v. Landes, 140 Iowa, 80, 83, 117 N. W. 22; Herrick v. Morrill, 37 Minn. 250, 33 N. W. 849.
But it is argued that the contract is void under the statute of frauds because it was not signed by .the defendant. On October 4, 1907, the defendant shipped a carload of lumber to plaintiff under this contract and plaintiff accepted and received the same. This was a sufficient part performance to take the case out of the statute. Amson v. Dreher, 35 Wis. 615; Gano v. C. & N. W. R. Co. 66 Wis. 1, 27 N. W. 628, 838; Mason v. H. Whitbeck Co. 35 Wis. 164; Schmidt v. Thomas, 75 Wis. 529, 44 N. W. 771; Prairie Grove C. Mfg. Co. v. Luder, 115 Wis. 20, 89 N. W. 138, 90 N. W. 1085; Merriman v. McCormick H. M. Co. 96 Wis. 600, 71 N. W. 1050; J. H. Silkman L. Co. v. Hunholz, 132 Wis. 610, 112 N. W. 1081.
The defendant concedes the correctness of the legal proposition, but contends that under its letter of September 27th the carload of lumber which defendant delivered was not shipped by virtue of the written order, but, at best, under a proposed modification of such order, which if accepted would extend the time of delivery for five months from the date of the letter. We do not so construe it. At the time it was [349]*349written tbe defendant undoubtedly supposed tbat it was under a valid and binding obligation to fumisb tbe lumber under tbe terms of tbe written order.- Tbe letter stated tbat one carload of lumber would be shipped at once pursuant to request contained in plaintiff’s letter of September 25tb. It then went on to state tbat tbe contract was indefinite as to tbe time of delivery and gave some excuses for not having more of tbe stock sawed and suggested tbat an arrangement be made for extending tbe contract period of delivery. We agree with tbe trial court tbat tbe carload of lumber was shipped in unqualified compliance with tbe contract, and tbat the rest of tbe letter is an apology for not being able to ship promptly, and a plea for an extension of time.
Defendant next contends tbat there can be no recovery because plaintiff refused to pay for tbe carload of lumber which was shipped to it. This position is not tenable. There was nothing due on tbe purchase until tbe expiration of sixty days from tbe date of tbe invoice. By tbat time tbe defendant bad already breached its contract and it was apparent tbat tbe plaintiff would suffer considerable loss in consequence of such breach. Eurtbermore, tbe ease would seem to fall within tbe principle of Campbell & C. Co. v. Weisse, 121 Wis. 491, 99 N. W. 340, but it is unnecessary to pass on that question.
Tbe appellant urges tbat tbe court erred in refusing to give tbe following instruction:
“The court instructs you tbat this order only calls for 'No. 2 common and better.’ Under tbe law tbe defendant was entitled to determine and select tbe grades of lumber to fill this order, and tbe amount of lumber in each grade to be delivered, except tbat no lumber could be delivered tbat would grade lower than No. 2 common, and tbe material delivered would have to contain some lumber of a higher grade than No. 2 common.”
We think tbe instruction was incorrect as a matter of law, and would be irrelevant if it were correct in the abstract. As we read tbe order, tbe defendant did not have the right to [350]*350fill it by shipping No. 2 common and better lumber, unless it was free from heart or wane except a little on the corners that would turn off in the process of manufacture. It is true the court did not hold as a matter of law that this was the correct construction of the order, as it might well have done. It conceived that the order was ambiguous and allowed the jury to ascertain its meaning. This ruling was favorable to the defendant, and it would have been error had the court placed the construction contended for by the defendant on the order. Whatever right the defendant might have had to select the lumber which it agreed to ship, it did not see fit to avail itself of that right, but compelled the plaintiff to procure its stock elsewhere at an inopportune time, and we are only concerned with the question whether a fair and'judicious selection was made. This question will be alluded to later. Furthermore, we entertain serious doubt about the right of the defendant to fill this order with practically all No. 2 stock, putting in enough of the higher grades to make a mixture. It is unnecessary to discuss the question.
It is urged that the court also erred in refusing the following instruction:
“The court further instructs you that in this order the defendant was by law entitled to deliver, as No. 2 common, all lumber that would cut fifty per cent, clear, and as No. 1 common all lumber that would cut two thirds clear, under the rules of inspection adopted by the National Hardwood Association, without, however, considering wane or hearts on corners as a defect.”
This instruction was immaterial to the issues on trial. It was also incorrect. Under it a 4x4 which graded above No. 3 common would have to be taken by the plaintiff if it contained wane that could not be turned off in the process of manufacturing croquet balls, and likewise a piece of lumber that had heart near the middle of it, although it might be wholly worthless for the purpose for which it was purchased.
[351]*351Error is assigned because tbe witness Garton was permitted to testify that the 4 x 4’s ordered would make a grade of No. 1 common and better lumber and that the- No. 2 common and better called for by the contract would mean “about 5 % No. 2 common, 45 % No. 1, and 45 % firsts and seconds.” '
This testimony was offered to show the difference between a straight grade of No. 2 common and better and No. 2 common and better from which was excluded all pieces of lumber which had either wane or heart that would not turn off in the process of manufacturing croquet balls. If true, it showed that very little No. 2 common would come up to the specifications of the contract, and would justify plaintiff in buying a small amount of No. 2 common in the market. There was variance in the testimony as to the percentage of No. 2 common that would ordinarily be found in a log run of No. 2 common and better, running from thirty-three and one-third per cent, to seventy-five per cent. The plaintiff purchased only about eighteen per cent, of No. 2 common, and it was proper enough for it to show why such a large proportion of high-grade lumher was purchased. Under Mr. Garton’s evidence it is more difficult to find justification for buying so much No. 2 than for buying so little. It is very evident that if a large percentage of No. 2 common, as ordinarily cut, would have heart and wane defects that would not work out in the process of manufacturing the balls as required by the contract, no economy would result from buying this kind of lumber.
The plaintiff, not being able to get dry 4 x 4’s of the required quality in the market, was compelled to buy wider dimensions and resaw them. This process necessarily resulted in a large amount of waste material and in considerable expense to cover the cost of resawing. The witnesses Garton and Shufflebottom were each asked: “What quantity of four-inch planks corresponding nearly to and not falling below the quality of grade No. 2 common and better would be [352]*352required for the purpose of manufacturing therefrom substantially the same number of croquet balls as would be made from 98,000 feet of maple squares called for under the contract?” The question was objected to by defendant in each instance and each witness was permitted to answer. Garton said you would have to add from twenty-five to thirty-three and one-third per cent, to the 98,000 feet, and Shufflebottom said it would require 130,000 feet. The fault found with the question is that neither of the parties had sufficient experience to qualify him to testify and that the witnesses were permitted to assume that the contract meant anything they wished. The subject was a proper one for expert evidence and we think the witnesses were competent. The other objection is not well taken because the question is in the abstract and makes no reference to the contract. We think the question was faulty in one respect. The evidence showed that plaintiff had purchased 110,382 feet of lumber, some of which graded first and second clear, some No.-l common and some No. 2 common, and the quantity of each was established by the evidence. The inquiry should have been as to the number of feet of lumber of the kinds and grqdes purchased it would take to make as many croquet balls as could be made from 98,000 feet of the kind of lumber called for by the contract. We think it is quite apparent that the witnesses so understood the question, and that although it was not strictly accurate in form'no prejudice resulted.
Lastly it is contended that the damages are excessive. The court computed damages on the verdict as follows: 130,660 feet at $30.76 per thousand, $4,019.10; cost of resawing, $261.32; total, $4,280.42. From this was deducted for value of waste material, $489.90, and the cost of 98,000 feet at the contract price of $23, $2,254. Total deductions, $2,743.90, leaving $1,536.52 damages. From this amount the court made a further deduction of $136.52, because the [353]*353complaint only claimed damages in the sum of $1,400, after eliminating one item of damage therein claimed wbicb was abandoned on the trial. In view of tbe evidence in tbe case tbe defendant might well insist on a different basis of computation as to so much of tbe shortage on its contract as was not made up by tbe purchase of tbe 110,382 feet of lumber wbicb tbe plaintiff actually bought. It was shown that there was 4x4 lumber on tbe market wbicb plaintiff might have purchased bad it been aware of that fact. In view of tbe deduction of $136.52 made by the court, tbe result reached was as favorable to tbe defendant as tbe result of the computation wbicb we have in mind would'be, and tbe error therefore, if there is any, is immaterial.
Tbe appellant contends that damages should have been assessed upon tbe theory that tbe 110,382 feet of lumber purchased produced as many croquet balls as tbe 98,000 feet would have produced, wbicb the defendant agreed to furnish biit did not furnish, and that damages'should be assessed on' this basis. The claim is based, on a statement in tbe bill of particulars furnished by plaintiff, wbicb recited that there was a waste of at least 12,462 'feet in resawing tbe 110,382 feet of lumber purchased and used, and on a computation of damages made on this assumption. Tbe plaintiff did not assume to know tbe exact amount of waste that would result from cutting up tbe lumber purchased, and tbe figures given represented an estimate somewhat guardedly made. Tbe plaintiff does not say that tbe waste would be 12,462 feet, but that it would be at least that much. Tbe actual amount of waste was something that it was difficult to determine with mathematical certainty, unless tbe plaintiff kept track of every board as it went through its factory, and this it did not do. Tbe matter of determining tbe amount of waste was submitted to tbe jury without objection and it reached a conclusion that is sustained by tbe evidence. .We do not think [354]*354the plaintiff should be concluded by the somewhat equivocal statement contained in its hill of particulars, particularly when it appears that the figures were the result of a mere estimate.
By the Court. — Judgment affirmed.
A motion for a rehearing was denied October 8, 1912.