Brayton v. Chase

3 Wis. 456 | Wis. | 1854

By the Court,

Whitoi>t, C. J.

We think the non-suit in this case was right.

The testimony clearly showed that Chase, the defendant below, acted as the agent of Seyinoiy & Morgan in making the contract with Bray ton for the sale of the reaper, and that that fact was disclosed to the plaintiff. The objection which was made at the trial to the disclosure of the witness (Howe), by which these facts were established, on account of the employ' ment of Howe to assist the plaintiff at the trial of the suit before the justice, is untenable. The communication which was made to the witness by the plaintiff and which the former disclosed at the trial, was not privileged. In order to give that character to a communication it must be made to the counsel, attorney or solicitor, acting for the time being in the character adviser. (1 Greenl. sec. 239 ; Jackson vs. French, 3 Wend Rep. 337 ; Caveny vs. Tannahill, 1 Hill. R. 33; Greenough vs. Gaskell, 1 Mylne and Keene R. 98. But the witness was merely employed by the plaintiff to assist him at the trial before the justice, and was not an attorney, counsellor or solicitor.

The paper which this witness identified, and which is set forth in the bill of exceptions ■ showed beyond dispute that the contract for the reaper was made by the plaintiff with Seymour & Morgan through their agent Chase, and that the plaintiff was fully aware at the time he made the contract, that he was dealing with Seymour & Morgan, and not with the defendant. This evidence is decisive of the case, but as exception-was taken to the ruling of the judge at the trial, by which he excluded testimony offered by the plaintiff upon the subject of damages, we have concluded to express an opinion in regard to it. And we are of opinion that it is entirely correct.

In actions of this nature, if the plaintiff prevails, he is entitled to such damages as shall have been sustained by him, and which resulted naturally and directly from the injury complained of. In other words “the damage to be recovered must always be the natural and proximate consequence of the act complained of.” (2 Greenl. Ev. § 256 ; Sedgwick on Measure of Damages, 66.)

Tested by this rule, the damages which the plaintiff offered to prove, were too remote; and resulted rather from the peculiar situation, of the plaintiff than from the breach of the contract. The judgment of the court below must be affirmed.