104 Wis. 109 | Wis. | 1899
1. The power of the corporation to make the contract in question is strenuously denied. That contract,
2. The question of the station agent’s authority to make such contract is simplified by the fact, apparent from the record, that both reliance on apparent authority and ratification were eliminated by the court below, and the jury only required to pass on the issue of actual authority, as to which the instructions are not excepted .to. We need only inquire, therefore, whether there was any evidence of such actual authority. Danielson was defendant’s freight and passenger agent at La Crosse, to solicit and contract for and manage the freight business done by the company at that place. The business establishments of that city extend over a considerable territory, not all within the city limits, and contiguous to different railroad tracks or to none.- Any freighting business of this municipal and business settlement would seem from the evidence» to fall within the scope of this agency, but defendant offered direct testimony that Danielson’s agency did not extend to the abattoir in question, because not on defendant’s tracks, and because outside the city limits. The significance of these distinctions is met, however, by evidence, without contradiction, that this agent, as also his predecessors, has always represented the ■company in its dealings with freighters on the tracks of ■other roads, and also with reference to certain establishments outside the city limits. In addition, certain corre
3. "Was there evidence that a contract, to carry this ice was made ? We think it plain that none was made between •defendant and plaintiff at the time of Mr. Eaker’s visit. 'The evidence tends strongly to show that any promise then made was to Baker, and not to plaintiff; but, even if the ■promise to transport the ice was then made to plaintiff, it •constituted no contract, for he entered into no reciprocal ■agreement, nor did he change his position to his hurt. There was an entire lack of mutuality. If plaintiff’s evidence is believed, however, the earlier transactions were sufficient ‘to constitute a contract. The defendant, in order to induce plaintiff to buy the ice, from which it anticipated benefit, ■made the promise to transport from the abattoir to Springfield for $2 per ton; and, on the faith of that promise, ■plaintiff changed his position and bought the ice. Here are •all the elements of contract: A promise upon a sufficient •consideration,— whether of benefit to the promisor or of injury to the promisee is immaterial, though both appear to be present. We think there was evidence to go to the jury •of the making of this contract. There was also evidence of its breach, in that it appeared that Danielson notified plaintiff that defendant could not furnish him cars and take his ice from the abattoir. After definite notification to such effect, no purpose could be served by repeated demands, which both parties knew could not be complied with.
4 On the question of damages, the position taken by the defendant’s attorneys was that the price paid by the plaintiff for the ice was the limit of his damages, from which, of ‘
The damages awarded upon the verdict were evidently upon the theory that 570 tons of ice (being the twenty car loads, less-, one car load as to which no breach occurred) were lost to the plaintiff, and would have yielded him $2 per ton, less about ten cents per ton for loading. There is evidence to support the ■ proposition that plaintiff made reasonably diligent efforts to-sell this ice to others, without success, and that he was unable-to satisfy his contract with Baker, or otherwise to dispose of the ice to customers whom he could reach by shipment over the Chicago, Milwaukee & St. Paul road, but it is admitted there was no effort on his part to overcome the obstacle between the abattoir and the tracks of the defendant’s railroad
By the Oourt.— Judgment of circuit' court reversed, and •cause remanded for a new trial.