75 Wis. 186 | Wis. | 1889
The conclusions we have reached relieve us from the necessity of determining whether the stipulation in the agreement of June 29, 1887, to the effect that if either party violate the terms thereof he shall pay to the other party, on demand, the sum of $200, thereby provides for a mere penalty, as in Lyman v. Babcock, 40 Wis. 503, or whether the $200 is to be regarded as liquidated damages, as in Berrinkott v. Traphagen, 39 Wis. 219. Neither are we called upon to decide whether the agreement, which contained no limitation of the time it shall continue, may be rescinded at the option of either party, as in Irish v.
1. Assuming it to have been proved on the trial that the defendant failed at different times to run a separate omnibus beween plaintiff’s-hotel and certain trains, it does not appear that such failure resulted in any damage to the plaintiff. It seems undisputed that the defendant ran an omnibus between each train arriving at either city and the plaintiff’s hotel, except when communication with the Cen-traba depot was necessarily interrupted by the destruction of the bridge, although on a few occasions before April 11th, and constantly afterwards, the same omnibus served other hotels. It is not shown that, at such times, there were any passengers to or from the hotel of plaintiff, and no fact or circumstance appears from which it can be inferred that the plaintiff suffered any damage because of the occasional failure of defendant to run a separate omnibus between plaintiff’s hotel and the depots. Hence the plaintiff would only be entitled to nominal damages for alleged breaches.
This action is brought upon the theory that the sum of $200 specified in the agreement is liquidated damages for any breach of the requirements thereof, and such is the contention of the plaintiff. Eor the purposes of the case, the correctness of this proposition will be conceded. In such a case, before an}r liability to pay the liquidated damages can attach to the party in default, he must have been guilty of a substantial breach of his agreement,— a breach which has resulted in something more than mere nominal damages to the other contracting party. This rule is so manifestly just that no discussion of it is necessary. Hence we
2. Was the defendant so released? He testified on the trial that on May 16, 1888, the day before the ferry-boat commenced running regularly, he told the plaintiff that he considered their contract ended by the destruction of the bridge, and he intended thereafter to run but one omnibus. Plaintiff claimed the contract was still in force. Thereupon the defendant offered to resell the same property to the plaintiff. They negotiated some days, and finally agreed on the terms of the resale. Thereafter the plaintiff refused to make the purchase, but said to the defendant: “ I have concluded .not to put any bus on. You may go on and run it as you wish to, or run it as you are a mind to.” Also that defendant need not carry a runner for him, if he did not wish to. The plaintiff denied these statements.
If the plaintiff said to defendant what the latter testified he did, we think the jury were justified in finding that plaintiff thereby released him from his obligation to run a separate omnibus between the hotel and depots. Sucha release is valid without any new and independent consideration to support it. The testimony being in conflict on this subject, it was competent for the jury to believe the defendant, and manifestly they did so and predicated their verdict on his testimony. This court cannot say that they should have disbelieved him and based their verdict on the testimony of the plaintiff.
Our conclusion is that the testimony supports the verdict, and hence that the judgment should not be disturbed.
By the Court.— The judgment of the circuit court is affirmed.