13 Wis. 67 | Wis. | 1860
By the Court,
This case has once been before this court, and a judgment recovered by the defendant was reversed because the court below had instructed the jury that the plaintiffs could not recover without showing that one of the machines delivered to Dousman & Oo. had been designated and set apart for the defendant, and marked with his name. Another trial was had, on which the plaintiffs recovered a judgment, and the defendant has appealed. While conceding that the former judgment was properly reversed, for the reason that the circuit court went too far in saying that the machine must actually be marked with the defendant’s name, his counsel now insist that it was essential for the plaintiffs to show that one of the machines had been so set apart for the defendant, as to vest the title in him. We are satisfied that this would be necessary, before the plaintiffs could recover as for goods sold and delivered, but are still of the opinion that it is not necessary in order to maintain their action on the contract for the refusal of the defendant to perform it. The distinction between these two causes of action is well established, and the rule of damages in the one is very different from that in the other. Where the vendor has actually taken all the steps necessary to vest the title to the goods sold in the vendee, he may sue for goods sold and delivered, and the rule of damages would be the contract price. But where he is ready and willing to perform, and offers to do so, but the vendee refuses, even though the title is not vested in the vendee, the vendor still has his action on the contract for damages. But the rule of damages in such case would be the actual injury sustained, which is ordinarily the difference between the value of the property at the time of the refusal, and the price agreed on. Ohitty on Con., 384; 1 Chitty’s Pl., 347; 2 Parsons on Con., 484, note h; Thompson vs. Alger, 12 Met., 428; Allen vs. Jarvis, 20 Conn., 38; Girard vs. Taggart, 5 S. & R., 19.
It seems to have been assumed on both sides, that if the plaintiffs recovered at all, they must recover the contract price, as for goods sold and delivered. If this were so, we should agree with the appellant, that it would then be necessary for the plaintiffs to have shown one of the machines to have been so designated for the defendant, as to vest the title in him, and the jury should have been so instructed at his request. But the complaint is framed upon the contract. It avers the making of the contract, and the compliance with it on the part of the plaintiffs, by delivering the machine to Dousman & Co., and then avers that the defendant refused to pay or to perform the contract on his part. This seems clearly sufficient to enable the plaintiffs to maintain their action for damages for his refusal to perform. The court, therefore, properly refused the instructions asked by the appellant, which went to exclude the right of action altogether, unless the title to some particular machine had actually vested in the defendant. We could not, therefore, reverse the judgment for this refusal, even though satisfied that the defendant might have been entitled, if he had asked it, to an instruction upon the rule of damages, which would have materially changed the result.
But we think the judgment must be reversed for another reason. The court below instructed the jury at the request of the plaintiffs’ counsel, that the defendant must first try the reaper with a team in the harvest field, before he could set up the defense that it would require more than a span of horses to make it perform according to the warranty. This instruction was undoubtedly based upon the last part of the defendant’s order for the machine. He there says that “ if
We think also that the court erred in excluding the testimony of Lockwood as to the power and capacity of his machine. It is true that ordinarily, where the question is as to the power of one machine, evidence as to the power of another would be inadmissible. But the circumstances of this case are peculiar. It will be remembered that the plaintiffs never specified any particular reaper for the defendant, but delivered a large number to Dousman & Co., one of which was designed for him. And when he came he was told he might take any one he chose. We held this to be a substantial compliance with the contract on the part of the plaintiffs, for the very reason that their witness testified that the reapers were all precisely alike, and manufactured from the same patterns. Now, when the plaintiffs rely on that evi
Witb these exceptions tbe rulings of tbe court below were correct. But for these errors thejudgmentmustbe reversed, jvith costs, and a new trial ordered.