145 Wis. 593 | Wis. | 1911
Defendant introduced evidence as to market value of tobacco at the time his was to have been received, for the purpose of showing the damage he had sustained by reason of its rejection by plaintiffs. Obviously the measure of his damage was the difference between the contract price and the market value at the time of delivery called for by the contract. In this state of the case plaintiffs claimed it was error to exclude testimony offered by them to show how the price in the contract in question compared with that in other contracts under which tobacco was being received at the time. The exclusion of this evidence was manifestly correct. The price of tobacco as fixed by specific contracts entered into in the past was not competent evidence as to the market value of tobacco at the time delivery was to be made by the defendant. Market value at any given time is fixed by sales made at or about that time, and not by sales under specific contracts made in the past.
Plaintiffs also assign as error the admission of. defendant’s testimony on the question of market value on the ground that
It appears that the defendant, after plaintiffs refused to receive Ms tobacco, sold it to one McG-iffin for eleven cents per pound for wrappers and binders and five cents per pound for fillers, instead of the contract price of fourteen and five cents respectively; and the court, in order to ascertain the amount of defendant’s damage under his counterclaim, submitted this question to the jury: “Did the defendant use reasonable efforts to sell the tobacco at the highest price obtainable in the vicinity after it was rejected by plaintiffs’ agent ?” The jury returned an affirmative answer to this question, and such answer, under the rule laid down in T. B. Scott L. Co. v. Hafner-Lothman Mfg. Co. 91 Wis. 667, 65 N. W. 513, settled the measure of damages. It is there said:
“So the true rule is that, in an action for damages for the refusal on the part of the vendee to accept goods as agreed in his contract of purchase, the measure of damages is the difference between the market value of such goods at the time of the breach, and the price the vendee agreed to pay; and when a resale is made within a reasonable time, though made at auction, as in the case of Bigelow v. Legg, supra [102 N. Y. 653, 6 N. E. 107], the price obtained is" evidence to be considered on the question of the market value at the time of such breach, and if a resale is made, and the evidence shows*597 tbat all reasonable efforts were made to secure tbe best price obtainable, or tbat tbe price obtained was a fair one, it settles tbe question of market value, so tbat tbe damages become liquidated.”
Here tbe affirmative answer to tbe question established tbe fact tbat tbe defendant used all reasonable efforts to sell tbe tobacco at tbe bigbest price obtainable in tbe vicinity, and bence tbe price so obtained could be properly considered as tbe measure of bis damages. But it is evident, as pointed out by counsel for plaintiffs, tbat if a negative answer bad been returned, no measure of damages would have been established, and tbe issue on tbat branch of tbe case would have been undetermined. Questions of a special verdict should always be so framed tbat tbe issues will be determined no matter bow they are answered, assuming tbe answer to be responsive to tbe question. In this case, in view of the answer, tbe error is harmless. But if tbe trial court bad submitted tbe question requested by plaintiffs’ counsel, the issue would have been determined by any responsive answer thereto. Tbat question was: “"What was tbe market value of tobacco of tbe kind and character specified in tbe contract, at tbe time and place for delivery of tbe tobacco in question as provided by tbe terms of said contract ?” Care should be exercised by trial judges to see tbat each question of a special verdict is so framed as not only to clearly include tbe issue of fact intended to be embraced therein, but also to permit its being determined by any responsive answer tbat may be returned; otherwise parties and tbe public may be subjected to needless expense.
Tbe first question submitted to tbe jury read: “Was tbe defendant’s tobacco, when rejected by tbe plaintiffs’ agent, in good packing condition, all trash and damaged tobacco excluded, wrappers and binders packed in bundles with fillers excluded, fillers tied in bands and packed in bundles?” This question was submitted for tbe purpose of determining
“You will answer this question according to the fact as you are satisfied from the preponderance of the evidence the fact is. That is, you will answer the question ‘No’ if you are satisfied to a reasonable certainty by the preponderance of the evidence that the fact is as expressed by such answer, and you will answer the question ‘Yes’ if you are satisfied to a reasonable certainty by the preponderance of the evidence that the fact is as expressed by that answer.”
It is possible that such an instruction might be held nonprejudicial were a proviso added that in the event the evidence was so evenly balanced that the jury were unable to determine upon which side the preponderance lay then they should answer it in the negative. In the absence of such a proviso, and as given, it was clearly erroneous. Counsel for defendant makes this ingenious argument:
“The situation regarding the first question of the verdict and the instruction applicable .thereto undoubtedly appealed to the trial court thus: The plaintiffs’ right to recover is predicated upon the jury’s answering the first question of the verdict ‘No;’ the defendant upon his counterclaim predicated his right to recover upon the jury’s answering the same question ‘Yes.’ Both demanding affirmative relief, the one recovering had the burden of establishing the fact as he claimed it to be to a reasonable certainty by a preponderance of the evidence. Hence the charge as given upon this question.”
But it is urged, even if the burden of proof did rest upon the defendant to establish the affirmative of the question, the instruction given did not and could not prejudice the plaintiffs, inasmuch as by answering the question “Yes” they must have found such fact by a preponderance of the evidence and to a reasonable certainty. This reasoning seems plausible, but it overlooks the fact that the jury may have arrived at the answer they did owing to the erroneous instruction that they could not answer it in the negative unless they were satisfied by a preponderance of the evidence and to a reasonable certainty that it should be so answered. It is manifest that the instruction, “you will answer the question 'No’ if you are satisfied to a reasonable certainty by the preponderance of the evidence that the fact is as expressed by such answer,”
Lastly, we are asked to affirm the judgment, though the charge was erroneous, on the ground that the question of fact .embodied in the first question of the special verdict was
By the Court. — Judgment reversed, and cause remanded for a new trial.