23 Mich. 305 | Mich. | 1871
The circuit court was clearly in error in directing the jury to deduct the eighteen thousand two hundred feet of lumber received by the plaintiffs from the whole amount to be delivered, when they entered upon a computation of damages. The effect of the instruction was to deprive the plaintiffs of any recovery in respect to this portion of the lumber, as if it had been delivered in compliance with the contract and accepted by the plaintiffs in satisfaction of the undertaking of the defendants to that extent. But the. record shows that it was not delivered as agreed, and that the plaintiffs were subjected to a heavy bill for freight in consequence; and there is nothing to show that there has been any waiver by the plaintiffs of their right to be compensated for the loss sustained by this bre'ach of the agreement.
We think the court erred, also, in instructing the jury that in getting at the proper measure of damages in respect to the lumber not delivered, they must allow the plaintiffs only the difference between the price they were to pay for the lumber and the wholesale price at the place of delivery. The question is not one of wholesale price or retail price, and an instruction to measure the damages by either might be erroneous. The true test of proper compensation in such cases is what it would have cost the plaintiffs to procure at the point of delivery and at the time or times when it was reasonable and proper for them to supply themselves, lumber of the kind and quality they were to receive on the contract; and deducting the contract price from this cost, we have the exact amount of damages suffered by them. So large an amount of lumber as was covered by this contract, they might, perhaps, have been able to procure at cargo prices;
The judgment must be reversed, with costs, and a new trial awarded.
