74 Wis. 425 | Wis. | 1889
The respondents brought this action to reform a contract for getting out and delivering'to the appellant a large quantity of sawed hard-wood lumber, and in the same complaint they seek to recover damages of the defendant for a breach of such contract.
That the respondents may join two such causes of action, one in equity' and one at law, is not controverted. This court has decided that such causes of action may be joined, under the provisions of sec. 2647, R. S. Harrison v. Juneau Bank, 17 Wis. 340, 350. This court has also decided that in such actions the equitable action should be tried by the court, and the legal cause of action by the court and jury. Sec. 2843, E. S.; Harrison v. Juneau Bank, supra; Gunn v. Madigan, 28 Wis. 158, 167. In the regular order of proceeding in an action of this kind, the equitable issue for the
We do not understand that the counsel make any complaint upon the regularity of the trial, but insist that there was no necessity for a reformation of the contract, claiming that it was apparent on its face when it was intended that its performance should take place. The mistake in the contract was in stating that it should be performed on or before the 1st of August, 188G, when it appeared on the face of the contract that the contract itself was made December 28, 1886, some months after its performance was required. It was claimed by the plaintiffs that there was a mistake in the date of. performance, and that it -was intended to have been written the 1st day of August, 1887, instead of 1886. We think the court was right in holding that it was necessary to reform the contract to make it conform to the agreement of the parties, before an action for its breach could be sustained. The date of performance stated in the contract being an impossible date, there was nothing to indicate when it was to be performed. Although lumbermen arid men familiar with that kind of business might infer that the date of performance intended was 1887, still there was no certainty about the matter. The date which should be inserted in the contract was the date agreed upon between the parties, and that might have been some other date as well as August 1, 1887.
The appellant alleges as error the introduction of certain
The only error assigned by the appellant is that the court improperly excluded evidence affecting the question of damages. The following is a copy of the contract, as reformed, upon which the claim for damages is based:
“ToRoh LaKE, Mich., Deo. 2Sth, 18S6. Phoenix Lumber Co., Milwaukee, Wis.— G-ents: We will sell you, and deliver to rail of your vessels at our dock, on or before August 1st, ’87, the following amounts and kinds of lumber, at prices we name; lumber to be log run, with mill culls and hearts out; to be measured straight; no deduction for imperfections; to be inspected and measured here within fifteen days after we report it ready; to be paid for on delivery of each cargo; we to cross-pile the lumber as sawed, and to bear half the cost of measuring and inspecting, and give vessel fair and reasonable dispatch in loading; lumber to be cut well, and also plumb in thickness, and to make a fair proportion of the maple into widths that will rip into 3-inch strips. We would want $500.00 advanced to us within thirty days:
600,000 ft. maple, @ per M. $11 00
100,000 “ elm, @ per M.'. 10 00
50,000 “ bass-wood, @ per M. 10 00
*431 25,000 ft. heach, @ per M.$10 00
25,000 “ birch, @ per M. 12 00
25,000 “ ash, @ per M.1. 11 00
20,000 “ red oak, common & better, @ per M. 15 00
“Yours truly, CaMekoN Baos.
“Accepted: PiioeNix Lumber Co.
“By "W". S. Reed.”
The evidence shows that the defendant repudiated the contract, and gave the plaintiffs notice that he would not perform it as early as April, 1887, and before the plaintiffs had sawed any of the lumber, but after they had purchased the logs out of which it might have been sawed. The learned circuit judge held that the rule of damages in this case was the profit which the plaintiffs would have made on the contract had they been permitted to perform the same. The appellant claimed that he had a right to show that the plaintiffs converted the logs into lumber and sold the same during the season of 1887, and that the measure of damages was the difference between what the lumber was sold for and what the defendant had agreed to pay for it, qualified, perhaps, by the fact that the plaintiffs had been to some expense in making the other sales, and any additional cost for manufacturing the lumber in excess of what it would have cost to manufacture the lumber according to the contract.
"We think the learned circuit judge was right as to the rule of damages in this case. As said by the learned counsel for the appellant, the plaintiffs took no steps to perform the contract after they were notified by the defendant that he refused to perform it on his part. The rights of the parties under the contract were fixed at that time. Whatever the plaintiffs did with the logs after that was wholly immaterial to the defendant, except that the plaintiffs could not refuse to do anything more with the logs, and then charge the defendant in damages for their loss. That the
The rule as held by the learned circuit judge is the one which this court has established, and is the one which is sustained by the great weight of authority. Salvo v. Duncan, 49 Wis. 151; Nilson v. Morse, 52 Wis. 255; Nash v. Hoxie, 59 Wis. 384; Jones v. Foster, 67 Wis. 296. As the plaintiffs could not enhance the damages against the defendant by their neglect to make the best of what they had on their hands, so they are not bound to lessen the damages by making other .contracts, and performing them, and giv
We find no error in the record.
By the Court.— The judgment of the circuit court is affirmed.