Prautsch v. Rasmussen ( 1907 )

WiNsnow, J.

In a number of cases in this court contracts which in all essential features were like the contract in question have been held to be entire contracts, requiring full performance before payment of the consideration is due, notwithstanding the fact that the contracts did not provide for payment in a lump sum, but for measurement of the consideration by quantities or units. McDonald v. Bryant, 73 Wis. 20, 40 N. W. 665; Boutin v. Lindsley, 84 Wis. 644, 54 N. W. 1017; Warehouse & B. S. Co. v. Galvin, 96 Wis. 523, 71 N. W. 804; Widman v. Gay, 104 Wis. 277, 80 N. W. 450. See, also, Baker v. Higgins, 21 N. Y. 397; Mount v. Lyon, 49 N. Y. 552; Shinn v. Bodine, 60 Pa. St. 182; Cherry Val. I. Works v. Florence I. R. Co. 64 Fed. 569. Tbe question hardly seems to be an open one in tbis court. It is true that in Goodwin v. Merrill, 13 Wis. 658, a contract for tbe sale of a given quantity of wheat at a certain price per bushel was held divisible because tbe parties by their subsequent conduct bad so construed it and bad “put it beyond doubt that they intended it to be severable,” but there was no such conduct in tbe present case. On tbe contrary, such acts of tbe parties as are brought out by tbe evidence rather tend to refute tbe idea that either party expected that ratable payments were to be made as the stone was delivered.

This consideration renders it certain that there is no error in the judgment of which the plaintiff can complain.

By the Court. — Judgment affirmed.