Opinion
No. 260.
Argued June 4, 1968. —
Decided June 28, 1968.
APPEAL from a judgment of the county court of Lafayette county: JOSEPH F. COLLINS, Judge. Affirmed.
For the appellant there was a brief by Viney Schmitz of Monroe, attorneys, and Jasper, Winner, Perina Rouse and John H. Rouse, all of Madison, of counsel, and oral argument by William J. Schmitz.
For the respondent there was a brief and oral argument by Ervin W. Johnson of Darlington.
This is an appeal from a judgment dismissing the plaintiff's complaint. Plaintiff Babler, a milk trucker, sued Roelli, claiming that, when Bowman's plant at Monroe was about to close, Roelli, the owner of a Dean's milk receiving station, promised that, if Babler would induce his farmers to sign up with Dean's, Babler would be able to truck the milk to Roelli's Dean's milk receiving station. It is undisputed that, shortly after the time Babler claims he reached an agreement with Roelli, he was told by a Dean representative that Dean's could only take about 25 of the 65 farmers who were hauling through Babler. It is also undisputed that Roelli, after the time of the purported agreement, called Babler and told him he was "out," that all the farmers who had transferred to Dean's would have their milk hauled by Roelli and not by Babler.
On the basis of conflicting testimony, the court concluded that at the time of the purported agreement it was not known that Bowman's would close and, hence, the agreement, if made, was contingent. The court also found as a matter of fact that to effectuate the contract Babler would have to apply for, and receive, the appropriate P.S.C. permit, that the amount of milk taken would have to be approved by Dean's, and that any contract would have to be consented to and approved by Dean's. These last two findings were equivalent to a finding that Roelli was without authority to enter into the purported contract.
The court also concluded that, in view of Babler's extensive experience as a milk hauler, knowledge of the contingent nature of the agreement and Roelli's lack of authority must be imputed to Babler.
The case was tried on a contract theory, and the court held that no contract was proved. On appeal, plaintiff has abandoned the contract theory and asserted his right to recover on the theory of promissory estoppel. While the facts are disputed, we are obliged only to consider those facts that would support the judgment, and it must stand unless those facts are contrary to the great weight and clear preponderance of the evidence.
The facts that support the judgment are these: Roelli operates a cheese factory of his own at Hicks Corners. At the same location but in a separate building Dean's Dairy operates a milk receiving station. Roelli owns this building and trucks milk to it; however, he has no supervisory authority over its operations. He has some responsibility for keeping the premises clean, but in the main his responsibility is limited to that of a lessor.
Babler was a milk hauler, and in February 1962 was hauling the milk of 60 or 65 farmers to the Bowman Dairy at Monroe, Wisconsin. On February 14, 1962, Roelli was visited by two dairy farmers who had information that Bowman's would shut down their operations on March 1st and they were looking for new markets for their milk. Roelli testified that he called Forrest Babler, the brother of plaintiff Bruce Babler, to find out if Bowman's was actually closing. As the result of this call, a meeting between Roelli, the plaintiff Bruce Babler, his son Ronnie, and his brother Forrest was arranged for the evening of February 15th at Roelli's living quarters at the cheese factory. It was Babler's claim that at this meeting Roelli proposed that Babler haul all of his milk to Dean's in the amount of 150,000 pounds per day. It was agreed that Babler and Roelli would each charge the same amount for hauling, and after a month's experience a partial trade of producers would be made between Roelli and Babler so their routes would not be duplicated.
Babler contends that under this agreement it was his obligation to induce his dairy farmers to sign up with the Dean field representatives when they came around to see the farmers.
The facts that we must accept that support the judgment if not contrary to the great weight and clear preponderance of the evidence are those testified to by Roelli. Accepting his version, as we must, the meeting of February 15th consisted merely of a discussion of the possibility that Bowman's would close. There was no discussion in regard to the amounts of milk Dean's might take, nor was there any discussion about Babler being the hauler for Dean's milk.
There was a subsequent meeting on February 19th, at which time there was definite information that Bowman's was closing its Monroe plant. This meeting was called by representatives of a milk marketing co-op, and the purpose of the meeting was to help provide markets for members of the co-op who had heretofore been selling to Bowman.
After that meeting, Bruce Babler asked Krause, a Dean milk representative, how much milk Dean's would take. Krause said he did not know. Ronnie, Bruce Babler's son, stopped at the Roelli cheese factory several times during the next few days and asked, "Have you heard anything?" Sometime before March 1st, John Dean, the chief farm representative of Dean's, called Roelli and stated that only 26 of the former Bowman farms could be taken. Roelli then called Babler and told him that Dean's was taking only 26 farms and that he had been directed by Dean's to haul for it.
It is clear from the testimony that, in fact, Roelli had no authority to represent Dean's. The fact that Babler contacted Krause, who was known to be a Dean representative, and that Ronnie stopped frequently to ask what Roelli had heard from Dean's is highly probative of the fact, as found by the trial judge, that Babler knew that Roelli had no authority to enter into a binding arrangement. Roelli's testimony, which must be believed if not inherently incredible, and it is not, indicates that no contract was entered into or contemplated by the parties.
The plaintiff appeals from the judgment dismissing his complaint.
The appellant does not contend on this appeal that the facts are sufficient to prove a conventional contract. Rather, he relies on the same facts to prove a cause of action in promissory estoppel.
At the very outset we are confronted with the question of whether the question of promissory estoppel is properly before us. A perusal of the complaint indicates, without a doubt, that all that was pleaded was express contract. A verbatim reading of the transcript makes it clear that the case was not tried on a theory of promissory estoppel. The trial judge expressed his findings in contract terms, and it was entirely proper that he did so, for there was no attempt in the pleadings or in the proof at trial to spell out the three conditions that give rise to a cause of action for promissory estoppel.
In Hoffman v. Red Owl Store's, Inc. (1965), 26 Wis.2d 683, 698, 133 N.W.2d 267, we said that three conditions must be established to permit a recovery on a theory of promissory estoppel:
"(1) Was the promise one which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee?
"(2) Did the promise induce such action or forbearance?
"(3) Can injustice be avoided only by enforcement of the promise
Rather than alleging or attempting to prove these conditions, the plaintiff pleaded and tried a case that sounded solely in contract, with the result, clearly supported by the evidence, that no contract was proved.
In Winnebago Homes, Inc. v. Sheldon (1966), 29 Wis.2d 692, 700, 701, 139 N.W.2d 606, we made it clear that the failure to plead a cause of action for promissory estoppel in the trial court precludes the plaintiff, as a matter of right, from raising the question for the first time on appeal. However, in the instant case, the facts which plaintiff relies upon to support this new cause of action are of record, and the defendant-respondent has been able to defend upon the basis of the facts as found by the trial court. Under these circumstances, where the consideration of promissory estoppel for the first time on appeal does not result in hardship or inequity to either party, we will proceed upon the basis of the facts found by the trial court to dispose of the plaintiff's contention upon the merits.
It is essentially the plaintiff's claim, in reliance upon the promise of Roelli that he would haul all the milk for Dean's, that within a day or two he contacted all of his producers and urged them to sell to Dean's if Bowman's, in fact, closed. Babler also claims that, by virtue of the promises made, he refrained from making timely arrangements to substitute the market at Pearl City for the Bowman plant at Monroe.
Were the facts as Babler would like us to believe they are, it perhaps could be said that Roelli made a promise that he should reasonably have expected would induce action or forbearance of a definite or substantial character on the part of Babler. However, the facts show no such promise. Roelli stated that he made no promise, and all was contingent upon the action of the Dean management.
The trial judge also found that, at the time of the alleged promise, it was not yet definite that Bowman's was closing down, nor could it be determined that a P.S.C. hauling permit would be granted to Babler for the new haul. The most significant finding, however, is that any agreement would have to be approved by a Dean representative. There was evidence, ample in the record, that Babler knew that Roelli's authority was extremely limited.
We cannot conclude that Roelli's .statements at the meeting of February 15th constituted a promise of any kind. And if they could be so characterized, the underlying facts would have made it not reasonable, but most unlikely and unreasonable, to expect that Babler would respond with action of a definite and substantial nature — and, of course, all that Babler really has alleged and proved is that, within the next two days, he or his son visited all of the milk producers and asked them to sell to Dean's. The action of Babler was at the most premature, for he had no contract he could assign to Dean's. The evidence was clear that each farmer was his own master and could switch his hauler or his market without notice. Under these circumstances, it does not appear that Babler's performance was, in fact, of particular significance. He did not control the milk producers, and there are only a very few that even the plaintiff contends agreed to shift to Dean's at his request.
The language used in Winnebago Homes, Inc., supra, page 701, is appropriate here. There, a builder claimed that it had been induced to complete the construction of a building by a promise of the finance agency to pay the balance of construction costs upon completion of the building. We said:
". . . we are . . . of the opinion that this contention would fail on its merits. This is because the so-called promise on the part of the lender may not fairly be construed to constitute an unqualified promise to pay upon completion. We believe it is clear that the payment by Advance Mortgage was necessarily conditioned both upon the Sheldons' authorizing it and also the lender's obtaining FHA insurance on the loan . . . .
"The construction company either knew or should have known that the disbursement of the funds by the lender was conditioned upon the FHA's insuring this loan."
Here, Babler knew or should have known that any promise, if one was made by Roelli, was conditioned upon the approval of Dean's. Babler knew it was not a promise that could reasonably be made by Roelli.
While the evidence is conflicting and Babler testified that he believed Roelli had authority to bind Dean's in this respect, the trial court found that Babler knew or should have known that Roelli had no such authority. Given the conflicting evidence, the trial court's finding must stand, and under Winnebago Homes, Inc., supra, plaintiff is precluded from asserting recovery on the theory of promissory estoppel.
The present case is unlike Hoffman, supra, where the jury found that Hoffman, in the exercise of ordinary care, had a right to rely on promises made by the agent for Red Owl. In the present case, the trial judge made a contrary finding on the disputed evidence. The weight of the testimony and the credibility of the witnesses are a matter for the trier of fact and are not to be disturbed if more than one reasonable inference can be drawn from the credible evidence. Hanz Trucking, Inc. v. Harris Brothers Co. (1965), 29 Wis.2d 254, 138 N.W.2d 238.
The trial court must be affirmed.
By the Court. — Judgment affirmed.