L. J. Mueller Furnace Co. v. Meiklejohn

Wisconsin Supreme Court

L. J. Mueller Furnace Co. v. Meiklejohn

99 N.W. 332, 121 Wis. 605, 1904 Wisc. LEXIS 37

CourtWisconsin Supreme Court

DecidedApril 19, 1904

StatusPublished

Cited by3 cases

This text of 99 N.W. 332 (L. J. Mueller Furnace Co. v. Meiklejohn) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

L. J. Mueller Furnace Co. v. Meiklejohn, 99 N.W. 332, 121 Wis. 605, 1904 Wisc. LEXIS 37 (Wis. 1904).

Pincite

Opinion

Winslow, J.

It was suggested by the respondent upon the argument that the bill of exceptions contained no exceptions to the findings of the court, and upon this suggestion the appellant’s counsel moved that the record be remitted to the trial court for correction of the bill and insertion of the exceptions, or, in case that motion was denied, for leave to dismiss the appeal. TTpon examination of the record, however, we find that the bill of exceptions contains exceptions to all of the findings which are in dispute, and that the bill is duly certified; hence the appellant’s motions become unnecessary to consider and are denied without costs.

TJpon the merits the controversy is in very small compass. The orders given by the defendant to the plaintiff’s agent [608]*608were by their terms only to become binding if approved and accepted by the plaintiff company. Up to the time of such approval and acceptance they could be withdrawn or canceled by the defendant. The whole transaction being by mail, the acceptance took place and the contract became binding at the moment when the postal card of acceptance, properly addressed, was deposited in the postoffice by the plaintiff, unless the orders had been previously withdrawn. Washburn v. Fletcher, 42 Wis. 152. So the only question really is whether the defendant’s letter directing that the orders be canceled reached the plaintiff’s office before the postal card of acceptance reached the postoffice. The trial court found an affirmative answer to this question, and we are unable to say that this answer is against the weight of the evidence. It is true that the plaintiff’s secretary testified that the orders were received in the morning of August 7th and the postal card of acknowledgment was immediately mailed, while the letter of countermand was not received until afternoon; but upon cross-examination he admits that he did not send the postal card himself, that he never saw the original, and -only testifies as to the time it was mailed from the position of the copy thereof in the copybook and the custom of the business. On the other hand, the proof is very strong that the countermanding letter was received as early as 2 o’clock p. m., while the postal card of acknowledgment bears the stamp of Station A at 4 p. m. Now, while there is no evidence as to how long letters remain in a city postoffice before they are stamped, it is matter of common knowledge that in city offices the collection and forwarding of mail is very frequent during business hours. Certainly, there is a strong inference, if a letter or postal is stamped at 4 p. m., that it reached the office very shortly before that time. If it reached the office at any time after 2 o’clock, then it was too late, because, as before stated, there was ample evidence to show that the letter of countermand reached the plaintiff’s office at 2 o’clock.

[609]*609There being no direct evidence which fixes the exact time when the postal card was deposited in the postoffice, we think the inference drawn by the trial court from the postoffice stamp, that it was deposited shortly before 4 p. m., was entirely justified, and hence that the orders were countermanded before acceptance.

By the Court — Judgment affirmed.

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Winslow, J.

It was suggested by the respondent upon the argument that the bill of exceptions contained no exceptions to the findings of the court, and upon this suggestion the appellant’s counsel moved that the record be remitted to the trial court for correction of the bill and insertion of the exceptions, or, in case that motion was denied, for leave to dismiss the appeal. TTpon examination of the record, however, we find that the bill of exceptions contains exceptions to all of the findings which are in dispute, and that the bill is duly certified; hence the appellant’s motions become unnecessary to consider and are denied without costs.

TJpon the merits the controversy is in very small compass. The orders given by the defendant to the plaintiff’s agent [608]*608were by their terms only to become binding if approved and accepted by the plaintiff company. Up to the time of such approval and acceptance they could be withdrawn or canceled by the defendant. The whole transaction being by mail, the acceptance took place and the contract became binding at the moment when the postal card of acceptance, properly addressed, was deposited in the postoffice by the plaintiff, unless the orders had been previously withdrawn. Washburn v. Fletcher, 42 Wis. 152. So the only question really is whether the defendant’s letter directing that the orders be canceled reached the plaintiff’s office before the postal card of acceptance reached the postoffice. The trial court found an affirmative answer to this question, and we are unable to say that this answer is against the weight of the evidence. It is true that the plaintiff’s secretary testified that the orders were received in the morning of August 7th and the postal card of acknowledgment was immediately mailed, while the letter of countermand was not received until afternoon; but upon cross-examination he admits that he did not send the postal card himself, that he never saw the original, and -only testifies as to the time it was mailed from the position of the copy thereof in the copybook and the custom of the business. On the other hand, the proof is very strong that the countermanding letter was received as early as 2 o’clock p. m., while the postal card of acknowledgment bears the stamp of Station A at 4 p. m. Now, while there is no evidence as to how long letters remain in a city postoffice before they are stamped, it is matter of common knowledge that in city offices the collection and forwarding of mail is very frequent during business hours. Certainly, there is a strong inference, if a letter or postal is stamped at 4 p. m., that it reached the office very shortly before that time. If it reached the office at any time after 2 o’clock, then it was too late, because, as before stated, there was ample evidence to show that the letter of countermand reached the plaintiff’s office at 2 o’clock.

[609]*609There being no direct evidence which fixes the exact time when the postal card was deposited in the postoffice, we think the inference drawn by the trial court from the postoffice stamp, that it was deposited shortly before 4 p. m., was entirely justified, and hence that the orders were countermanded before acceptance.

By the Court — Judgment affirmed.

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Bluebook (online)

99 N.W. 332, 121 Wis. 605, 1904 Wisc. LEXIS 37, Counsel Stack Legal Research, https://law.counselstack.com/opinion/l-j-mueller-furnace-co-v-meiklejohn-wis-1904.

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