54 Wis. 619 | Wis. | 1882
It is conceded that none of the lumber contracted for was ever delivered by the defendant company, and it is not claimed that the plaintiffs made any default in the performance of the contract on their part. The plaintiffs are therefore entitled to recover in the action, and the only matter to be determined on this appeal is the rule of damages. The general rule in actions to recover damages for the breach of an execu-tory contract to sell and deliver goods, is that the difference between the market -price of the goods at the time and place specified in the contract for delivering the same, and tire contract price, is the measure of damages. The basis of this rule is, that on failure of the vendor to deliver the purchaser may go into the market at the time and place of delivery, and supply himself with the same kind of goods at the market price. Hence, the difference between what he is compelled to pay for the goods, and what they would have cost him had the vendor performed his contract, justly measures th'e damages which he has sustained by the breach of the contract. But this rule presupposes that the purchasers may go.into the market at the agreed time and place of delivery and obtain the goods. If no such goods can then be obtained at that place, there can be no market price there by which to measure the purchasers’ damages. The idea that there can be a real, substantial market price for a given commodity, when there is no such commodity for sale in the market, is absurd. If, therefore, there were no deals for. sale in the Ashland market from July 1 to
Testimony was given on behalf of the defendant that there was a market price for deals of the grades specified in the contract at Ashland and Bayfield, and that the same price obtained in Ontonagon and Hancock — the former place being 100 and the latter 120 miles distant from Ashland. We need not stop to inquire how the plaintiffs would be affected thereby could they have purchased alike quantity, quality and description of deals in those markets in July, 1878, because there is really no evidence that they could have procured the same in either or all of them. The evidence is conclusive that they could not have supplied themselves in the markets of Ashland or Bay-field. As to Ontonagon, the only testimony is that there were 3,000,000 feet of logs there in 1878, which would make twenty-five per cent, of deals of the quality specified in the contract. There is no evidence that any deals were cut or that they could have been procured at that place during that year. There is evidence to the effect that 600,000 or 700,000 feet were manufactured at Hancock in 1878. The grade or dimensions of the Hancock deals, or the time when manufactured, does not appear. It does appear, however, that the same were manufactured for Chicago parties. The evidence would not support a finding or verdict that deals were kept in stock for general sale at any of these places, or at any place in the Lake Superior region. All of the proofs tend to show that this kind of lumber is usually manufactured to fill special contracts therefor. It is not claimed that the defendant company informed the plaintiffs they could obtain the deals elsewhere; and the managing owner of the company testified that the company could not have purchased the same. If it could not, it is difficult to understand how or where the plaintiffs could do so.
We conclude that the evidence fails entirely to show that
,,, The learned circuit judge submitted the question to the jury whether there was a market price at Ashland, or in that vicinity, for such deals as the contract called- for, at the'time the same were agreed to be delivered, and whether the plaintiffs could have then purchased the same in the Ashland market, or in that vicinity. There being.no sufficient evidence to support an affirmative finding on that question, it was error to submit it to the jury. Spaulding v. C. & N. W. Railway Co., 33 Wis., 582, and cases cited; Read v. Morse, 34 Wis., 315.
The court admitted testimony tending to show that the plaintiffs could have procured the deals to be manufactured at some of the mills on the Wisconsin Central Eailway between Ashland and Stevens Point. We think the testimony should have been rejected. We find no proof that the plaintiffs had any notice that the defendant company would not perform its contract, until it made default; that is? until July 1, 1878. There is no proof whatever that the plaintiffs, after that timé, could have supplied themselves with deals at those mills of the grades and dimensions specified in the contract, and placed the same in Ashland, piled for shipment, at the times and in the manner required by the contract.
Until they had notice to the contrary, the plaintiffs might. well rely on their contract with the defendant to obtain the . deals; and, before the defendant can be allowed to show that deals might have been obtained by the plaintiffs at the mills on the railway, it must show not only that deals of the grades and dimensions specified in the contract could have been thus obtained, but that the plaintiffs had sufficient time after notice
W hat, then, is the rule of damages in a case like this ? In the leading case of Hadley v. Baxendale, 9 Exch., 341 (S. C., 26 Eng. Law & Eq., 398), the doctrine of which has been adopted by this and many other courts, the rule applicable to this case was thus stated by Baron Aldeeson: “Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from .the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special .circumstances so known and communicated. But, on the other hand, if these special circumstances wei;e wholly unknown to the party breaking the contract, he, at the most,
Among the cases in this court in which the rule of Hadley v. Baxendale has been approved and applied, are the following: Shepard v. Mil. Gas Light Co., 15 Wis., 318; Richardson v. Chynoweth, 26 Wis., 656; Chapman v. Ingram, 30 Wis., 290. See also Ingram v. Rankin, 47 Wis., 406. Many of the adjudications in other courts upholding the rule of Had-ley v. Baxendale are cited and commented upon in the opinions in the above eases. It is unnecessary further to refer to them here. A very learned and elaborate note, in which a large number of cases, both English and American, bearing upon and approving the different branches of the above rule are collated, will be found in 1 Sedg. Dam. (7th ed.), 218.
The amended complaint contained allegations that plaintiffs purchased the deals for resale at Quebec; that they had in fact contracted to sell them to parties there in October preceding at a stipulated price largely in advance of the- price which they agreed to pay the defendant therefor; and that they notified the defendant on July 8, 1878, that they had so contracted for a resale of the deals. This portion of the complaint was stricken put by the court on motion of the defendant. This ruling was correct. To bind the defendant by the price stipulated for on a resale, he must have had notice of such resale when the contract was made, though, perhaps, not of the contract price. In the absence of such notice it cannot fairly be said that the special damages which the plaintiffs suffered because of their inability to fulfill their contract with the Quebec parties may reasonably be supposed to have been within the
But with the above allegations there was also stricken from the complaint an allegation that at the time of making the contract the defendant had notice that the plaintiffs purchased the deals for shipment to and resale at Quebec. This is very different from the other allegation, that the defendant had notice on July 8th that the plaintiffs had already contracted for a resale, and, as we shall presently see, should not have been stricken out.
• Testimony was offered by the plaintiffs on the trial to prove the allegations thus properly stricken from the complaint, but it was rejected by the court. It is an elementary rule that to entitle the plaintiff to prove special damages, in an action to recover damages, he must allege in his complaint the facts which entitle him thereto. No such facts as to a resale being alleged in this complaint, the testimony was properly rejected.
It was, however, alleged in the complaint (as already stated) that the deals were purchased for shipment to Quebec, and the •undisputed evidence is that the defendant company had notice of the fact when the contract of February 5, 187S, was made. The evidence having been received, the plaintiffs are entitled to the benefit of it, the same as though the averment had been retained in the complaint. It may reasonably be presumed that when the contract was made the defendant knew that, should it fail to deliver the deals as agreed, the plaintiffs would be unable to procure them by the agreed time of delivery at Ashland, or in any other Lake Superior lumber market.
Whether the plaintiffs intended to sell the deals in the Que-
This seems to us to be the correct application of the rule of Hadley v. Baxendale to the present case; and the application is sustained in principle by several of the cases above referred 'to.
The jury were instructed that they might consider the evidence of the market value of deals in Quebec, but “only so far as it may throw light upon the real state of the market at Ashland and vicinity.” This was an improper restriction upon the effect of the evidence, which, when considered with other portions of the charge before mentioned, could scarcely fail to be injurious to the plaintiffs. The jury should have been instructed that thé evidence should be considered by them as determining the value of the deals to the plaintiffs at Ashland, the agreed place of delivery. ,
On behalf of the plaintiffs the following instruction was
Understanding, that the cost of insurance is part of the expense of transportation (for that measures the perils of the transit, which is an element in the cost of transportation), we perceive no good reason why the instruction does not state correctly the-law applicable to the case. We think that the substance of the instruction should have been given.
Because of the errors above indicated there must be a new trial. ■
By the Gov/rt. — -The order appealed from is reversed, and the cause will be remanded with directions to the circuit court to set aside the verdict and award a new trial.