The plaintiff sued as assignee of the firm of Maxim, LeMay & Crane. The assignment was absolute, in consideration of applying the net proceeds of the claim in suit to the payment of certain claims against the said firm, and paying over the overplus to said firm.
The appellant company constructed a bridge on the line of its road over the Uemadji river, a short distance from its mouth, where it empties into Lake Superior, at Superior city, with a draw in it to admit the passage of boats and vessels and other craft navigating said river. The assignors were engaged during the years 1882 and 1883 in the business of receiving logs, which were run down said river at a point about two miles above said bridge, and there assorting them and joining them together in rafts and towing the same by means of tug-boats into the bay of Superior, and thence to the mills of their owners. 'While they were engaged in so sorting, booming, rafting, towing, and delivering logs during the fall of 1882, they were delayed by the neglect and refusal of the defendant company to open the draw of
We have carefully read the testimony, and we are satisfied that the verdict of the jury, both as to the amount of the plaintiff’s damages and the cause thereof, was warranted by competent testimony, and it is useless to say more on the merits of the case or questions of fact.
A demurrer to the complaint was overruled, and this is assigned as error; but inasmuch as the same questions were raised on the trial, and in instructions to the jury, such error need not be specially considered.
1. Did the assignment to the plaintiff of the cause of action entitle him to sue alone ? The assignment certainly entitles him to the moneys to be recovered in the action. It is correctly said by the learned counsel of the respondent, in their brief, that the reasoning in the case of Hooper v. C. & N. W. R. Co. 21 Wis. 81, would seem to confer such right on the plaintiff as assignee. In that case the shipper, or consignor, was allowed to sue alone for lost goods, for the reason that the consignee did not object, and without his objection it was presumed that it was with his knowledge and consent, and that the suit was prosecuted for his benefit by the consignor as his trustee. The case of Smith v. C. & N. W. R. Co. 23 Wis. 267, seems to be in point. The assignor of property and choses in action to pay debts brought the suit. Dixon, 0. J., said in the opinion: “ The interest of the plaintiff is residuary and equitable merely. He has no legal interest in the claim, the title being vested absolutely in the assignee, who alone can bring suit upon it and control the proceedings for its collection.” In Wooliscroft v. Horton, 15 Wis. 198, an account was placed in the hands of another to collect the same, and pay the debt of the owner of the account to himself. It was held that such other person was the proper person to sue. See, also, Allen v. Kennedy, 49 Wis. 549; Waterman v. C., M. & St. P. R. Co. 61 Wis. 465; McArthur v. G. B. & M. Canal Co. 34 Wis. 139; Vimont v. C. & N. W. R. Co. 64 Iowa, 513. Erom these authorities, and others which might have been cited, and from principle, it is clear that the plaintiff had the right to sue.
2. Was it the duty of the assignors to have notified the company to open the draw of the bridge every time they wished to pass through with the tug-boats? If this bridge, with the draw closed, was an unlawful obstruction of the
3. Ought the assignors to have opened the draw every time they wished to pass the bridge with a tug-boat? If any such duty was imposed upon them, it was by virtue of their right to abate the nuisance and not suffer unnecessary damage by the delays occasioned thereby by reason of its continuance. This principle would scarcely be a safe one in such a case where the company had the right to keep the draw closed when necessary for their use in running railway trains across the bridge. It follows, then, that if the assignors ought to have opened the draw at such times, as a temporary and necessary abatement of the nuisance as to them, it was their duty also to close it again after they had passed through, and thus become a party responsible to other persons navigating the river in a similar manner for the nuisance. This certainly the law cannot require. But, again, it would be exceedingly dangerous for all persons navigating that river to open the draw for themselves whenever they should wish to pass the
4. If it was necessary that the assignors should procure tug-boats with adjustable smolce-pipes that could pass under the draw closed, in order to avoid unnecessary delay and damage, the evidence seems to be that they did so as soon as they could. But does the law in such a case impose the duty upon those navigating that river to resort to extraordinary and unusual methods of tug-boat construction in order to avoid delay and damage? We think not. The assignors had the right to use common and ordinary tugs in their business. They were not required to go a long distance and be at expense to find tugs which could be used on
5. There is no contest over the first class of damage mentioned in the complaint, but as to the second class of damage the learned counsel of the appellant contends that such was too remote and speculative. The verdict of the jury divided these damages, and found —first, for that resulting at the time from delays at the bridge; and, secondly, that arising from the consequent loss to the assignors in carrying on their business, from such delays and hinder-ances. These last damages seem to have been computed as the additional cost to them of getting out their logs in a season of low water, made necessary by such delays in the season of high water. That such seasons of high and low water usually occur every year, or in most years, in respect to our rivers in this state and Minnesota, is of common knowledge. It is also common to adjust and regulate the lumber business upon such rivers by the reasonable expectation that such seasons will occur, and their occurrence may well be considered to be in the ordinary course of nature, and may be presumed to be considered, contemplated, and anticipated by contracting parties in relation to such use of the rivers, and are so common and usual as not to form an unexpected, uncertain, speculative, and independent cause intervening to break the connection and continuity between the delays in the season of high water as the cause, and the 'increased cost of the work in the season of low water as the consequence. The learned counsel of the appellant plausibly insists that the company shall not be held responsible for providential droughts, or such drought as occurred in the fall of the year 1883, which was the cause of the in
6. Intimately connected with this question is whether these damages are speculative, and cannot be certainly ascertained. Are they ideal, theoretical, or imaginary? If so, they cannot be recovered. If this suit had been brought after the first damages had been suffered, and before the last had occurred, and it had been sought to be proved what damages the assignors would probably suffer by increased cost of their work in the fall of that year, occasioned by such delays by reason of low water, such damages might be called speculative with- better reason, for then such damage might or might not have occurred. It might have been an exceptional year of high water the whole year, and other circumstances might not have been present. Eut these natural occurrences all took place, and without the fault of the assignors they were compelled to suffer this increased cost of their work. What before might have been speculation had become fixed facts, which formed the data of certain estimation and computation of the exact loss. Similar damages have been allowed and sanctioned by this court, whatever may be the conflict of authority elsewhere, but we do not find much conflict on the question. In Shepard v. Milwaukee G. L. Co. 15 Wis. 318, the pecuniary loss, inconvenience, and annoyance experienced by the plaintiff
Einally, we think the evidence shows that the assignors did all that the law required them to do to prevent the damages they suffered. 'The case was very ably presented on both sides. We find no error in the record.
By the Court.— The judgment of the circuit court is affirmed.