Bishop v. Price

24 Wis. 480 | Wis. | 1869

DixoN, C. J.

The court erred in permitting the plaintiff, as a witness upon the stand, to testify what it was worth to drive out the logs in question. It was already in evidence before the court and jury, that there were special contracts between the parties for driving the logs. The plaintiff had testified to such contracts, and that the price which he was to receive for driving the first lot of logs was fifty cents, and for the second lot one dollar and fifty cents, per thousand feet. The plaintiff, in answer to the question which was objected to by counsel for the defendant, testified tliat it was worth, fifty cents per thousand feet to drive the first lot of logs, and three dollars per thousand feet to drive the last. This evidence was clearly'inadmissible, and since it must, or at least may, have been considered by the jury in determining the sum which the plaintiff was entitled to recover for driving the last lot of logs, the verdict and judgment cannot be permitted to stand. Where there is a special contract between parties, and work done under it, the contract must govern as to the price to be paid for such work, even though the contract may have been but partially performed, and suit is brought to recover on a quantum meruit for the work done. This was decided in Hayward v. Leonard (7 Pick. 181), and for very good reasons, as will be seen by consulting the opinion of Chief Justice Pabker. The party agreeing to do the work cannot take advantage of his failure completely to perform it, in order to enhance the price of the work he has done; and, if he can recover at all upon a partial performance, it can only be according to the price fixed by the contract. See also Noble v. James, 2 Grant’s Cases, 278. And in this case the measure of the plaintiff’s recovery would be the price fixed by the special contracts, with interest, less such damages as the defendant may show that he has sustained by reason of any breaches of the contracts on the part of the plaintiff.

By the Court. — Judgment reversed, and a new trial awarded.