84 Wis. 644 | Wis. | 1893
The complaint of the plaintiffs, as copartners, against the defendants, as copartners, states, in effect, the following facts: The defendants are indebted to the plaintiffs in the sum of $218 for services performed at their special instance and request in towing and working upon certain pine saw logs, between May 1 and June 16, 1891, said labor consisting in towing 545,000 feet of said logs
The answer stated, in effect, the following facts, after a general denial: It was agreed between the parties in the spring of 1891 that, if the defendants would raft about 1,100,000 feet of logs owned by them on Eig Bay, Madeline Island, ready for towing as soon as the ice would permit in the spring, the plaintiffs would furnish all necessary boom sticks and chains, and give said logs constant personal attention, and see that none were lost by reason of the weather, and immediately upon the rafting thereof will, without delay, tow said logs to the boom of Shores Lumber Company, at the city of Ashland, for eighteen cents per 1,000 feet. The defendants performed their part of the contract,' and notified the plaintiffs thereof, but the plaintiffs utterly neglected and failed to perform their part of the contract, and neglected to tow or care for said logs, although there was sufficient time and suitable weather immediately after such rafting to allow them to transport and safely boom said logs in Ashland, as agreed. The plaintiffs allowed said logs to remain in said raft where boomed for a long time, and, solely by their neglect and failure to perform their contract, a large portion of said logs, without any fault of the defendants, was lost, and they were compelled to boom and raft said logs several times at considerable expense and cost; and on account of such failure to perform by the plaintiffs the defendants, were obliged to employ another tug to do said towing, and. expended $500 in rebooming and rerafting said logs, and' in towing the same, and for lost logs. The defendants brought suit against the plaintiffs in the circuit court of Ashland county about the 9th day of July, 1891, to
The judgment roll in said action was admitted in evidence as matter in bar of this action. Both actions appear to have been brought upon the same contract. The defendants here brought the former action for damages arising from a breach of it by the plaintiffs here, and the plaintiffs bring this action for the contract price of its performance. There can scarcely be any controversy as to what the contract really was, and there is as little question but that it was an entire contract. The plaintiffs could not recover in this action without proving a full compliance .with it qn their part. They were to tow a certain quantity or lot of logs from the place where they were rafted to Ashland for eighteen cents per 1,000 feet. McDonald v. Bryant, 73 Wis. 20, and cases cited in the opinion. The plaintiffs in the former action set out the contract in their
It is also stated in the answer in the former case “ that the defendants towed to Ashland, June 15,. 1891, all of said logs then remaining at Madeline Island, a portion of the logs having been previously towed by other persons.” If this averment can be construed as alleging a partial performance of the contract beneficial to the plaintiffs in that action, the value of which ought, in equity, to be deducted from the plaintiffs’ damages, or be made to lessen the amount of their damages, then we must presume that they were so considered and adjusted in that case. Butler v. Suffolk Glass Co. 126 Mass. 512; 2 Suth. Dam. 466; Richardson v. Woehler, 26 Mich. 90; Fisk v. Tank, 12 Wis. 276; Knapp v. Runals, 37 Wis. 135; Dickson v. Cole, 34 Wis. 621; Nash v. Howie, 59 Wis. 384; Taylor v. Read, 4 Paige, 561; Ives v. Van Epps, 22 Wend. 156; Emery v. St. L., K. & N. W. R. Co. 77 Mo. 345. But whether this part performance was made to lessen the plaintiffs’ damages in that case or"not, such part performance could not be made the bas’is of an action, or entitle the plaintiffs to recover in this action. Nothing less than a full performance of an entire contract would constitute a cause of action.
The circuit court ruled that the former adjudication and recovery barred the plaintiffs’ action, and on motion of the defendants directed the jury to find a verdict for the defendants, and judgment was rendered accordingly, from
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.