This is an action brought by the plaintiff-respondent, Elroy Lemke, against the defendant-appellant, the Larsen Company, to recover damages for certain unharvested sweet corn which the plaintiff grew pursuant to a contract with the defendant.
The defendant is a Wisconsin corporation engaged in food processing. January 12, 1965, the parties entered into a contract relating to the growing and purchasing of sweet corn. The contract was later supplemented as to rate schedule and acreage. However, this has no significance in this case except that the plaintiff had the intervening two months between the execution of the original contract and the execution of the supplemental contract to consider the terms of the principal contract.
According to the contract, the defendant furnished the seed the plaintiff planted and plaintiff raised approximately 135 acres of sweet corn. On September 15, 1965, the defendant commenced to harvest the corn grown by the plaintiff by furnishing the labor and equipment, as provided in the contract. Approximately 60 acres were harvested at this time. The next day the harvesting crew opened another field belonging to the plaintiff and commenced to harvest it. Shortly after commencing to harvest the second field, the crew moved to a field of a neighbor, one Edmund Dupperpool. The remaining corn on the fields of the plaintiff was never harvested.
The plaintiff states that the defendant's fieldman told him he had been informed by another employee of the defendant that the corn on the second field was immature; the plaintiff claims his corn was of the same maturity as the corn on the Dupperpool field, and that his fields were in substantially the same condition. The fieldman also states that from the time the corn reached suitable maturity for harvest until the corn became too mature to harvest, the fields owned by the plaintiff were too wet for the operation of the defendant's self-powered harvesting equipment. The plaintiff in his affidavit states he had additional power equipment available and would have provided it for harvesting as set forth in the contract. The fieldman says he visited the fields of the plaintiff on September 22, 23, 24, 26 and 27, and on October 1, 2 and 4, and that the fields were at all times too wet for the operation of defendant's equipment. Plaintiff claims he was home at all times, but did not see the fieldman. The plaintiff also alleges defendant's crews worked short days when they could have worked full days. The defendant also alleges that they lost substantial acreage of sweet corn in other parts of the state because of a late frost and had therefore instructed its employees to harvest all the corn possible. Some specific provisions of the contract will be set forth in the opinion.
The trial judge denied a motion by the defendant for summary judgment on the grounds that there were issues of fact to be resolved. The defendant appeals.
HANSEN, J.
The sole question on this appeal is whether the trial court was correct in its determination that there were issues of fact to be resolved. In its decision denying defendant's motion for summary judgment, the trial court did not state the issue or issues of fact it believed to exist.
This court has stated that summary judgment should not be granted where there are substantial issues of fact to be determined, when the evidence on a material fact is in conflict, or when there are permissible inferences from undisputed facts that would permit a different result. Weiss v. Mutual Indemnity Co. (1966), 32 Wis.2d 182, 145 N.W.2d 171; Thompson v. Dairyland Mut. Ins. Co. (1966), 30 Wis.2d 187, 140 N.W.2d 200.
An examination of the record reflects that there are issues of fact to be determined and that evidence on material facts are in conflict, all of which must be resolved by trial.
One of the paragraphs in the contract is designated "Harvesting" and reads as follows:
"The company will endeavor, but does not guarantee, to provide the specialized labor and equipment to harvest the crop, per Company's rate schedule. It is mutually agreed that the prompt and proper handling of this perishable crop affects the quality to the Company and the compensation rate to Contractor. Should, therefore, in the Company's judgment, field or weather conditions be such that Company's harvesting equipment is unable to operate effectively under its own power, the Contractor agrees to provide such additional power as may be required."
We are cognizant of the fact that by the terms of the contract, the defendant did not guarantee to harvest plaintiff's corn. However, the defendant contends that it did "endeavor" to harvest the corn under the terms of the contract as it understood and interpreted the meaning of the word. The plaintiff contends that defendant did not "endeavor" to harvest the crop as he understood and interpreted the meaning of the contract. As a result, some 74 acres of corn planted by the plaintiff did not get harvested, for which the plaintiff now claims he should be compensated in some manner. Therefore, is the word "endeavor" as used in the contract free from ambiguity? We think not.
The defendant submits affidavits from its company employees that the plaintiff's crop was too immature to harvest when they were at his farm to harvest it, and that thereafter when the corn became mature enough to harvest, the fields of the plaintiff were too wet for operation of the defendant's harvesting equipment. The plaintiff, on the other hand, claims his corn was of the same maturity as Dupperpool's and his fields in substantially the same condition. Plaintiff also states that at all material times he had four tractors and stood ready, willing and able to provide them as additional power to harvest the corn, and that defendant at no time requested the plaintiff to provide such additional power although it had authority to do so under the contract.
The plaintiff further alleges in his affidavit ". . . that there were many days during September, 1965, when the field and weather conditions then existing on plaintiff's field were such that the corn could have been harvested. That the plaintiff knows of his own knowledge that there were several occasions on such days when the harvesting crew of the defendant worked `short days' by starting late in the morning and quitting early in the afternoon."
These affidavits raise questions of fact as to whether the defendant "endeavored" to provide labor and equipment as its meaning was understood and intended by each of the parties individually. Each of the parties must have attributed some meaning to the word. What they intended it to mean we have no way of knowing from the contract itself and it therefore becomes subject to ambiguity. Under such circumstances, the construction of the word and the construction of this entire paragraph relating to the harvesting of the crop depends upon the intention of the parties in using it and is therefore a question of fact.
While the construction of a contract when it is not ambiguous, is a matter of law for the court to determine, however, when there is ambiguity, the sense in which the words are therein used is a question of fact.
The issue involves the intention of the parties at the time the contract was entered into, and therefore a clearly defined issue of fact is raised. Bergman v. Bernsdorf (1955), 271 Wis. 401, 73 N.W.2d 595, 74 N.W.2d 744. When the language of a contract, considered as a whole, is reasonably or fairly susceptible to different constructions, it is therefore ambiguous, and such being the situation, the sense in which the words are therein used is a question of fact. Cargill Coal Co. v. Valentine (1957), 275 Wis. 598, 82 N.W.2d 883.
Other issues of fact are alleged. However, having determined that there is a substantial issue of fact to be resolved, no useful purpose would be served by further considering them.
By the Court. — Order affirmed.