Flick v. Wetherbee

20 Wis. 392 | Wis. | 1866

Cole, J.

There can be no doubt that the lease offered in evidence imposed upon the appellant the duty of furnishing good seed corn ; but what is the proper rule of damages for a breach of the contract in this particular, is a question of considerable difficulty. On the part of the respondent it is claimed, that the tenant is to receive indemnity, and consequently should recover the loss which he has sustained from the defective seed, or in other words, the difference between the crop which was raised anda good crop of corn. On the other hand, it is objected that this rule is inadmissible, since it in effect permits the tenant to recover the anticipated profits of a crop of corn, which are in their nature too contingent and speculative, and too dependent upon the chances of the market and the changes of the weather, to enter into a safe and reasonable estimate of the damages. Nothing, it is said, is more uncertain than profits anticipated from a crop of corn, which is liable to be cut off or injured by drouth, storms or frosts, onto be destroyed by cattle, and even when grown is subject to the fluctuations of markets and chances of trade ; and hence the proper measure of damages is the price of good seed corn and interest, excluding all other damages. I confess I have been in considerable doubt upon the subject, and I am not now clear as to what rule should be adopted. We find the remark frequently made by the authorities, that speculative profits are not allowed in tbe estimate of damages for tbe breach of a contract ; yet precisely wbat is meant by tbis language it is a little difficult to say. See Sedgwick on Damages (3d ed.), p. 72. But it is perhaps not now necessary to go into a discussion of tbe general question as to bow far courts have gone in the denial of profits by tbe way of damages, as my brethren are clear that tbis case may be safely disposed of upon its special circumstances. I have some doubt upon that point likewise, but I am disposed to defer to their opinions. There was evidence offered which tended to show that when tbe • seed corn was selected from tbe crib, tbe respondent objected to receiving it, saying that be did not think it would grow, and that tbe appellant said be would take tbe risk of its being good seed. Tbe circuit court, in effect, charged tbe jury that if they found that when tbe seed was selected tbe respondent informed tbe appellant that be thought it poor, and objected to taking it, and tbe appellant insisted upon bis so doing, agreeing to assume tbe risk of tbe failure of a crop if tbe seed was defective, as well for himself as for tbe respondent, then be was liable for wbat tbe proof showed might have been raised if tbe seed corn bad been good. Tbis instruction obviously goes upon tbe assumption that tbe jury might find from tbe evidence that there was a special warranty that tbe seed planted was good, and that if it proved to be defective tbe appellant undertook and agreed to become liable for all tbe loss which might result therefrom — in other words, for tbe loss of tbe crop. Tbe doubt I have upon tbis view of tbe case grows out of tbe weakness of tbe evidence to show such an agreement on the part of tbe appellant. If tbe evidence was sufficient to authorize tbe jury to find that tbe appellant incurred such a liability, then it seems to me it might well be said that be must make good tbe actual loss resulting from tbe defective seed. See Passenger v. Thorburn, 35 Barb., 17; Page v. Pavey, 34 Eng. C. L., 628; Brown v. Edgington, 40 id., 371; 15 Wis., 318.

A still further objection is taken to that portion of tbe charge in wbieb tbe jury were told that if they found that the respondent was entitled to recover on this branch of the case, his measure of damages would be the profit of the crop if the seed had been good ; because it makes no allowance for the value of the crop actually grown. We think, however, this portion of the charge relates to the deficiency, and must be so construed. With this interpretation, it is undoubtedly correct.

It results from these views that the judgment of the circuit court must be affirmed.

By the Court. — Judgment affirmed.