47 Wis. 455 | Wis. | 1879
The only question in this case relates to the rule of damages for the failure of the defendant to supply ice according to his contract. The plaintiff was a butcher by trade, and the defendant undertook and agreed to furnish him with what ice he might require for his ice box, in which he kept fresh meat, at a stipulated sum for the season of 1878.
About the last of July the defendant stopped supplying ice, and refused any longer to furnish the plaintiff with ice for his box. In consequence the plaintiff lost considerable fresh meat, which spoiled for want of ice. The defendant had supplied the plaintiff with ice the previous season, and well understood the use to be made of the ice which he contracted to deliver. Nothing was paid by the plaintiff on the contract. In respect to the measure of damages the learned county court directed the jury to the effect that, where the vendor fails to deliver goods according to his contract, as a general rule, the vendee, in an action for the breach, would be allowed to recover as damages the difference between the price agreed to be paid for the goods to be delivered and the market value of the goods at the time the contract was broken; that in this action the plaintiff was entitled to recover all such damages as would naturally flow from a breach of the contract on the
Now the learned counsel for the defendant makes two criticisms upon the charge as given, and the refusal to instruct as requested: .First, he says that as to the spoiled meat the court below regarded that as a cause of action in tort, and as to that adopted the rule of damages which would have been applicable if the injury were a trespass or other wrong committed by defendant, rather than a breach of contract on his part; and, second, the rule laid down by the court gives the plaintiff the same damages for nondelivery of the ice which he had not paid for, which he would have been entitled to receive had he paid for it.
Uow, as the defendant was acquainted with all the special circumstances in respect to this contract — knew for what purpose the ice agreed to be furnished by him was to be used,— he should fully indemnify the plaintiff for the loss he sustained by nondelivery of the ice; and he was, therefore, justly chargeable in damages for the meat spoiled in consequence of the inability of the plaintiff to procure ice elsewhere. This is a legitimate element to be considered in estimating the plaintiff’s damages. It is a consequence which “ may reasonably be supposed to have been in the contemplation of both parties, at the time of making of the contract, as the probable result of the breach of it.” But it is obvious that these damages were con
That a vendee wbo has not paid the consideration should, in an action for nondelivery by the vendor, recover the same damages that he would where he had paid the contract price, is a proposition so obviously unsound as not to need argument to show its fallacy. Prof. G-reenleaf says: “Upon a contract to deliver goods, the general rule of damages for nondelivery is the market value of the goods at the time and place of the promised delivery, if no money has yet been paid by the ven-dee; but, if the vendee has already paid the price in advance, he may recover the highest price of such goods in the same place at any time between tire stipulated day of delivery and the time of trial.” 2 Greenl., § 261.
The following cases, to which we were referred on the argu-
By the Court. — The judgment of the county court is reversed, and the cause remanded for a new trial, unless the plaintiff remits from the amount of the verdict the contract price of the ice. Upon such a remittitur being filed, the court will give judgment for the amount of the verdict less such deduction; otherwise let there be a new trial.
Hotb. — A somewhat' different rule of damages from the one given by Prof. Greenleaf in this section was laid down by this court in Ingram v. Rankin, ante, p. 406,