30 Wis. 290 | Wis. | 1872
This is an action for damages brought against tbe defendants as buyers, for refusing to accept a certain quantity of lumber sold them by tbe plaintiff. Tbe complaint, as amended on tjie trial before tbe referee, in substance alleged that tbe parties entered into a contract in September, 1868, in and by which tbe defendants agreed to accept and receive all tbe lumber which should be manufactured for the plaintiff at tbe mill of
On tbe trial before tbe referee, tbe defendants asked tbe witness Kennedy — one of tbe defendants — at what time tbe season for running lumber down tbe Chippewa and Mississppi rivers closed tbat year. Tbe question was objected to and ruled out. It was insisted by tbe defendants before tbe circuit court tbat tbe referee erroneously excluded this evidence, but tbe court below seems to have thought tbat this ruling was correct and confirmed tbe report, notwithstanding this objection. This is tbe first error relied upon here for a reversal of tbe judgment.
It appears to us tbat this evidence was competent and should have been received. According to tbe contract as set forth in tbe complaint, and as testified to by tbe plaintiff himself, tbe defendants agreed to receive all lumber which should be manufactured for tbe plaintiff at tbe mill of Esterbrook, during tbe fall of 1868, so long as they could run tbe lumber down tbe Chippewa and Mississsippi rivers tbat season. This was tbe contract according to tbe plaintiff’s understanding, and for breach of which tbe action was brought. In this view of tbe matter, is it not manifest tbat tbe time when tbe season for running lumber down tbe Chippewa and Mississippi rivers closed, was a material question in tbe case ? Suppose tbe defendant s could show
In tbe event it should be established on another trial, tbat tbe contract was as claimed by tbe plaintiff, and tbat tbe lumber was tendered upon it within tbe season for running lumber,
In this case the lumber was run to Lansing, Iowa, and sold, and the plaintiff was permitted to recover the difference between the price the lumber sold for at that place — after deducting the necessary expenses of running the lumber there— and the contract price. We do not readily perceive upon wliat principle the plaintiff could claim the right to run the.lumber to that place and sell it, and then charge the defendants with the difference between the price contracted to have been paid and what it sold for at Lansing, after deducting the expense of running it there. What right had the plaintiff to select this market at their expense? The lumber was to be delivered at Eau Claire. There is where the defendants had agreed to accept it. Selling the lumber at any place, as is said in Andrews v. Hoover, supra, is only a convenient and satisfactory means of ascertaining the difference between the contract price and value of the lumber when it ought to be accepted, but it is not the only means. The plaintiff might, however, show by other evidence what the lumber was worth at Eau Claire, without resorting to a sale, even there, to test its value. But to run the lumber away for a distance of two
These remarks are deemed sufficient to inform the court below of our views as to the proper rule of damages, if it should be found that the defendants ought to have accepted the 79,000 feet of lumber when it was tendered by the plaintiff.
By the Court — The judgment of the circuit court is reversed and a new trial ordered.