State ex rel. News Publishing Co. v. Park

165 N.W. 289, 166 Wis. 386, 1917 Wisc. LEXIS 216

• Court: Wisconsin Supreme Court
• Decided: December 4, 1917
• Status: Published

Opinion

Winslow, O. J.

The paper was sold on written orders mailed at Milwaukee to the plaintiff at Port Edwards. Upon acceptance at Port Edwards the orders became contracts and hence that city is the place of the contract. L. J. Mueller F. Co. v. Meiklejohn, 121 Wis. 605, 99 N. W. 332. There was no right to a change of venue under the statute unless “some part of the cause of action,” i. e. some act or omission without which there would be no cause of action, arose in Milwaukee county. Sub. 5, sec. 2619, Stats.; State ex rel. Northwestern Mut. L. Ins. Co. v. Circuit Courts 165 Wis. 387, 162 N. W. 436.

The contract, as we have seen, 'was made at Port Edwards, and the remaining affirmative act essential to a cause of action is performance. Conceding for the purposes of the action, without however deciding, that default in payment is an essential part of the cause of action, the question is whether either the act or the default named arose in Milwaukee county.

We see no reason to doubt the correctness of the ruling that both the act and the omission to act mentioned occurred at Port Edwards.

Under the undisputed terms of the invoice, title passed to the defendant when the paper was placed on cars at the mill. That is what the letters “f. o. b. mill” mean in the absence of contract provisions or facts persuasively showing a different intent. Vogt v. Schienebeck, 122 Wis. 491, 100 N. W. 820; McCollom v. M., St. P. & S. S. M. R. Co. 152 Wis. 435, 139 N. W. 1129; Gehl v. Peycke Bros. C. Co. 158 Wis. 494, 149 N. W. 275. Such also is the effect of our Uniform Sales Act. Sub. 4, sec. 1684i — 19, Stats. There were no contract provisions showing any different intent here, and so far as any facts having that tendency are concerned the trial court evidently held that they were amply met by the plaintiff’s affidavits, a conclusion in which we concur.

The place of payment by the terms of the contract was the residence of the vendor. “All invoices to be settled monthly by cash payable in funds current in Chicago or New York,” clearly means that and nothing else. The fact that the plaintiff had been in the habit of receiving personal checks in payment of instalments due under the previous contracts cuts no figure. At the most this seems to have been mere in-diligence, but even if it rose to tbe dignity of custom it could not vary tbe terms of a definite and unambiguous contract. Mowatt v. Wilkinson, 110 Wis. 176, 85 N. W. 661; Francis H. Leggett & Co. v. West Salem C. Co. 155 Wis. 462, 144 N. W. 969.

By the Court. — Writ quashed, with costs against tbe relator.

KeewiN and Esohweilee, JJ., dissent.