Lawrence v. Milwaukee, Lake Shore & Western Railway Co.

54 N.W. 797, 84 Wis. 427, 1893 Wisc. LEXIS 80

• Court: Wisconsin Supreme Court
• Decided: March 21, 1893
• Status: Published

Opinion

LyoN, C. J.

Seventeen specific errors are assigned and relied upon to work a reversal of the judgment from which this appeal is'taken. Some of these are purely tech-nica!, and require little notice. Those which, if well taken, are deemed material, may well be classified under fewer heads. It is believed that the determination of the following questions (which will be considered in their order) is decisive of this appeal: (1) Do the letters of December-10 and 13, 1889, constitute a valid contract between the parties? If so, then (2) did plaintiff perform his .part of such contract? (3) Is there any testimony tending to prove that the railway company delayed unreasonably to transport the logs? (4) Can the plaintiff be allowed, under his complaint and proofs, to recover any damages?

1. In the letter of December 10, 1889, the defendant railway company offered to ship for the plaintiff about 3,000,000 feet of logs from Kempster to Oshkosh, on the cars of the Paine Lumber Company, at the rate of five cents per 100 pounds, with a minimum to each car of 35,000 pounds. If necessary to chain the logs for safety, a part of the offer was that plaintiff should chain them. Whether it became necessary to do so or not does not appear. Such offer contained all necessary terms of a perfect contract except express stipulations as to the time plaintiff should-have the cars and logs ready for such shipment, and how soon thereafter the logs should béfshipped. In the absence of such stipulations, the law writes in 'the offer that those things should be done within a reasonable time. As to when the law will imply stipulations in a contract which are not expressed therein, see Seaman v. Ascherman, 57 Wis. 547. By the letter of December 13th the plaintiff accepted the offered rate. If such acceptance covers the entire offer, the two letters constitute a valid and binding contract.

The plaintiff accepted the offered rate, but said nothing' about chaining the logs if necessary. It is argued that his omission to accept specifically the requirement as to chaining the logs prevents the two letters from constituting a contract. The substance and legal effect of the offer were that, if plaintiff would, within a reasonable time, furnish Paine Lumber Company cars, and load them with his logs at Kempster, and chain the logs if necessary, the railway company would, within a reasonable time thereafter, transr port such logs to Oshkosh at the rate of five cents per 100 pounds,— no car to contain less than 35,000 pounds. By accepting the rate without qualification the plaintiff necessarily accepted it with all the conditions specified by the railway company, one of which was the condition relative to chaining the logs.

But it is also argued that because plaintiff in his letter of December 13th said, “I will be down, the first of the week and make out a contract,” it is evident he did not in-, tend or suppose that such letter perfected a contract for the shipment of the logs, binding upon both parties. Why not? True, he contemplated the execution of a more formal written contract, but it does not appear that either party contemplated the insertion therein of any stipulation upon which their minds had not already met, and which ■was not substantially inserted in the two letters. Neither does it appear that either party believed any further writing was necessary to create a contract between them. Certainly the plaintiff did not, for without any further writing he proceeded to execute the contract expressed in the two letters on his part, and demanded its execution by the'railway company. It also very satisfactorily appears that the railway company was of the same opinion, for in the letter of Mr. Wellington of December 20th he calls for information as to when the plaintiff desires to begin shipping logs, how many cars he was going to put in the service, how many logs he would want to ship per day, and the amount to be shipped. Some of these inquiries, especially that as to “ how many Paine lumber cars you are going to put in the service,” are quite inconsistent with the idea that Mr. Wellington did not suppose a contract existed.

The clause in the letter of December 10th which reads, “If you will make the shipment, please advise us promptly, that we may prepare to move them ” (that is, the logs), is merely a request that the plaintiff advise the railway company promptly whether he accepts the offer contained in the letter. The plaintiff complied with such request.

With due regard to the admonition contained in the opinion in Lyman v. Robinson, 14 Allen, 254, quoted approvingly by the late Mr. Justice Taylor in Moulton v. Kershaw, 59 Wis. 316, to the effect that care should always be taken not to construe as an agreement letters which the parties intended only as preliminary negotiations, we are yet impelled to the conclusion that, in any admissible view of the letters of December 10th and 13th, taken together they constitute a contract binding upon the parties, and hence that the learned circuit judge did not err when he so instructed the jury as matter of law.

2. Did the plaintiff perform his part of the contract ? It was his duty, under the contract, to furnish the necessary cars for the transportation of his logs from Kempster to Oshkosh. It is claimed that it was his duty actually to deliver the cars to the railway company. The company was notified, in substance, on January 6th, in behalf of plaintiff, that twenty Paine Lumber Company cars, to be used in the business, were at Watersmeet, Appleton, and Oshkosh, which he desired the railway company to take from the Northwestern Company, in whose possession they were, and that the latter company had been directed to turn them over to defendant company. The latter company did not decline to get the cars, or claim that the plaintiff was bound to mate any other delivery of them, or that there was the slightest difficulty in getting them. It simply failed to accept the cars and commence the shipment of the logs until the last days of January, and has given no satisfactory or sufficient reason for such failure. We conclude the plaintiff was not in fault for failure to furnish cars on which to ship his logs to Oshkosh.

3. Did the railway company delay unreasonably to transport plaintiff’s logs? It is claimed it did not, for the reason that up to January 13th, and probably to a later date, the company did not understand that any contract had been made, and that in this matter it was misled by the promise of plaintiff in his letter of acceptance that he would “ be down the first of the week and make out a contract.” We have seen that a contract was in fact made by the two letters of December 10th and 13th, and was recognized as such by the company as early as December 20th. "We think the railway company cannot be heard to plead ignorance of the existence of the contract, and that, if it failed unreasonably, after receiving the notice of January 6th, to obtain the cars at Oshkosh, Appleton, and 'Watersmeet, offered by plaintiff, it is liable to respond in damages for the consequences of such delay. The jury necessaril}T found the rail-wajr company guilty of such delay, for they were instructed that if there was none the plaintiff could not recover.

4. It is further claimed that, conceding the accuracy of the legal propositions above stated and held, still, under the averments of the complaint and the proofs, the plaintiff is not entitled to recover. The complaint alleges the making of the contract about December 11, 1889, that the railway company agreed therein to commence the transportation of the logs at once, and that the company failed to do so for four weeks thereafter. It is argued that the four weeks expired before the railway company was in default, and hence that for want of proper averments there can be no recovery for damages suffered by plaintiff after the expiration of such four weeks. This is too technical. It ignores the existing rule which demands a liberal construction of pleadings with a view to substantial justice. A contract substantially like that alleged is proved, and a breach thereof by the railway company, with resulting damages to plaintiff, is, on sufficient evidence, established by the verdict of the jury. Whatever variances there may be between averments and proof are quite immaterial. They can prejudice no one, and ought to be disregarded. No analysis of the complaint will be attempted. Perhaps it might be improved, but we think it sufficient to inform the railway company of the cause of action upon which the verdict and judgment are .based. Upon the whole case we are satisfied that they should not be disturbed.

By the Court.— The judgment of the circuit court is affirmed.