33 Wis. 558 | Wis. | 1873
The facts of this case upon which the questions of law arise, are few and undisputed. The plaintiffs, who were engaged in buying and selling grain in Milwaukee, through
The blanks furnished by the company for night dispatches, and subject to which the message in question was sent, provide that the company will receive messages for all stations east of the Mississippi river, to be sent during the night, at one-half of the usual rates, on condition that “ the company shall not be liable for error or delay in the transmission or delivery, or for nondelivery, of such messages, from whatever cause occurring, and shall only be bound in such case to return the amount paid by the sender.”
It is now claimed on the part of the defendant that this stipulation restricting its liability is valid, and exonerates it from payment of all loss or damage which may result from errors or delay in the transmission or delivery, or for the nondelivery, of a night message, from whatever cause occurring. The plaintiffs, it is said, were competent to assent to this stipulation, and did assent to it and are therefore bound by it, having chosen themselves to take the risk of the dispatch reaching its proper destination. If they were not willing to take that risk, it is said, they should- have paid the higher rate and sent the dispatch under the contract for transmitting day messages, in which case the company would have been responsible for the correct transmission and prompt delivery of the dispatch to their agent.
In the case of Candee against this same defendant, decided at the present term,
And this brings us to a consideration of the important question as to the proper rule of damages applicable to the case. The court below found as a conclusion of law, that no injury had been sustained by the plaintiffs for which the court could compute damages, and ordered judgment for the defendant. In this we think the court was clearly wrong, because the plaintiffs were entitled to recover nominal damages, at least, as the consequence of the breach of contract on the part of the company in failing to deliver the message. But are they further
It is a most material fact to be kept in view, that no purchase or bargain for wheat was ever made. On the 8th of May, when the agent was informed of the sending of the dispatch, he confessedly took no steps to make the purchase. If the dispatch had been properly delivered on the 7th, and he had made the purchase according to the order of his principals, they would have lost heavily on the contract had they not resold before they actually had the wheat in possession. Eor, on the 29th day of June, when the vendor might have delivered on the contract, wheat was worth in the market 24 1-4 cents on a bushel less than when the agent would have purchased. Now, suppose the company had said to plaintiff’s agent on the 7th : “ Such a dispatch has been received at the Milwaukee office, and has been mislaid or lost through the carelessness or fault of our employees, but we will assume the contract you were ordered to make, and deliver the twenty thousand bushels of wheat to your principals, of the designated quality, for $1.48 per bushel, at our option, in June.” What would have been the measure of damages, if the company had made 'default in the performance of this contract ? Mr. Sedgwick lays down the rule on the subject as follows : “ When contracts for the sale of chattels are broken ,by the vendor failing to deliver the property according to the terms of the bargain, it seems to be well settled, as a general rule, both in England and the United States, that the measure of damages is the difference between
Since this opinion was prepared, my attention has been called to the decision of the court of appeals of New York, in Baker v. Brake (published in The Alb. Law Jour., Nov. 29,1873), which in its general reasoning supports the result reached in this case.
It is apparent that in this case there was a technical breach of contract on the part of the company, for which the plaintiffs were entitled to recover nominal damages. But this would be the extent of the recovery. A judgment for nominal damages would not have carried costs, because the action might have been brought in a justice’s court. The dispatch was to be paid for on delivery in Milwaukee; but, as it was never delivered, the plaintiffs were at no expense for its transmission. And while the county court was wrong in not rendering judgment for the plaintiffs for nominal damages, yet in a case like the present, this constitutes no ground for a reversal of the judgment. This point was so ruled in Laubenheimer v.
By the Court. —It is so ordered.
Tbe case bere referred to was beld on a motion for a rehearing, and will be reported as of tbe January term, 1874. Rep.