Opinion
April 9, 1957 —
May 7, 1957.
APPEAL from an order of the circuit court for La Crosse county: LINCOLN NEPRUD, Circuit Judge. Affirmed.
For the appellant the cause was submitted on the briefs of Johns, Roraff, Pappas Flaherty of La Crosse.
For the respondent there was a brief by Hale, Skemp, Hanson Schnurrer, and oral argument by Joseph D. Becker, all of La Crosse.
Demurrer to complaint. This action was commenced October 17, 1955, in the small claims court for La Crosse county by the plaintiff, Cargill Coal Company, a Wisconsin corporation with business address in La Crosse, against the defendant, Clair I. Valentine of the same city, for the recovery of damages resulting from loss of profits of $186.44 due to alleged breach of a contract for the purchase and installation of a furnace and appurtenances. The contract was partially printed and partially typewritten, and was prepared by the plaintiff. A copy thereof was attached to the complaint. In so far as relevant the contract (with the typewritten portion thereof herein italicized) provides as follows:
ORDER FOR IRON FIREMAN EQUIPMENT
July 21 1955 C. I. Valentine 1125 Pine St. La Crosse, Wis. One fOH 85 oil fired furnace Completely installed including 275 gal. fuel tank, piping, wiring, duct work, automatic humidifier and all controls Necessary to operate this unit Guarantee — 1 year mechanical " 1 year service Installation to be completed by Sept. 1st $770.00
No. ______________ Please enter our order for equipment as specified below, subject to strikes, accidents, priorities, urgencies, or other delays beyond your control Name of building or job Address City Amount Items Price MODEL IRON FIREMAN Complete with Electrical Equipment for Cycles Volts Phase AC DC with the following automatic controls: Additional Equipment: Prices are F. O. B. Factory F. O. B. Buyer's Premises ; Installed as Agreed . Delivery Date total Dollars on Net Cash Basis We agree to pay for the above equipment in the following manner: Net Cash Basis as Follows: to be financed.Extended Payments as follows: _________________________
It is expressly understood and agreed that the property covered hereby shall remain personal property, whether placed upon a permanent foundation or in any manner affixed or attached to the building or structure in which it may be contained.
Unless the above equipment and materials are fully paid for as set forth above, the title to all such equipment and materials shall remain in the seller. In such case, the seller may, at its election, remove said equipment unless payment is made within the time limit set forth above and retain payments made as liquidated damages without legal process.
The conditions and warranties set forth on the opposite side of this agreement are hereby incorporated by reference and made a part of this contract as fully as though completely recited above, and the purchaser hereby represents that he has read this entire contract, including said conditions, and warranties, and agrees to all of its terms and to said conditions and warranties, and also agrees that this agreement shall not be binding upon the seller until duly approved and accepted in writing by one of its duly authorized officers.
It is expressly stipulated and agreed that the foregoing provisions constitute the entire contract between the purchaser and the seller which shall not be in any way changed, altered, amended, or modified by any verbal promises, agreements, or representations by or between said parties or their agents or representatives unless and until the same shall be reduced to writing and evidenced by the signature of the purchaser and an authorized officer of the seller. July 21, 1955 Clair I. Valentine Cargill Htg Air Cond. Co. C. R. Collins 2-5337
Accepted Purchaser Signed: Seller _______________ By By __________________________________ Address _________________________ Salesman Phone -------------------------------- In its complaint, the plaintiff alleged:"That on or about July 25, 1955, defendant orally by telephone informed the plaintiff of his intention to breach said contract and refused to make payment therefor;"
The defendant demurred to the complaint on the ground of insufficiency of cause of action. The court overruled the demurrer, and an appeal from that order was taken to the circuit court for La Crosse county. There the ruling of the small claims court was affirmed, with directions for remand to the small claims court for further proceedings. This appeal is by the defendant from said order of the circuit court.
The defendant contends that the written phrase in the contract "to be financed," clearly indicates an intention that the plaintiff would accept the purchase price in the form of deferred payments, and that since the times for payment are not fixed, the contract is indefinite as to payment, and hence is invalid under the rule of Buck v. Pond (1905), 126 Wis. 382, 105 N.W. 909; Poole v. Tannis (1908), 137 Wis. 363, 118 N.W. 188, 118 N.W. 864; and Bast v. Sproll (1922), 176 Wis. 371, 187 N.W. 223. It is the position of the plaintiff that the contract calls for cash payment from the defendant upon the completion of the installation of the furnace.
It was the view of the small claims court, as expressed in its decision, and which was sustained by the circuit court, that "the complaint, construed in the most favorable light to the plaintiff, is sufficiently definite and certain to state a cause of action. The court feels that the method of payment can, from the face of said contract, be interpreted to mean that an immediate cash payment be made in full, and that the phrase `to be financed' can be construed to refer to financing by other persons."
We are of the opinion that considered as a whole, the language of the contract is reasonably or fairly susceptible of different constructions, and that it is therefore ambiguous. Where there is ambiguity in a contract, the sense in which the words therein are used is a question of fact. Woodall v. Democrat Printing Co. (1947), 250 Wis. 348, 27 N.W.2d 437. It is the rule that in determining the meaning of a writing which is ambiguous, it is proper to receive evidence to ascertain the situation and surrounding circumstances in order that the court may put itself in the place of the parties and then ascertain their intention. Jones v. Holland Furnace Co. (1925), 188 Wis. 394, 206 N.W. 57.
If the language of an instrument is ambiguous, the court is not restricted to a consideration of the face of the instrument in ascertaining the intent of the parties. Ludtke v. Compound School Dist. (1944), 246 Wis. 235, 16 N.W.2d 562.
When the sufficiency of a complaint is challenged by demurrer, every reasonable intendment and presumption is to be made in favor of the complaint, and the plaintiff is entitled to all reasonable inferences which can be drawn from the facts pleaded. Conrad v. Evans (1955), 269 Wis. 387, 390, 69 N.W.2d 478.
The court properly overruled the demurrer. If at the trial it is established that by the words "to be financed" it was intended that the seller was to accept payments in instalments, and that it was not to be paid in cash by the buyer when the installation was completed, then the doctrine of the cases relied on by the defendant as above referred to, will apply.
By the Court. — Order affirmed.