120 Wis. 84 | Wis. | 1903
The rule of law is general that he who breaks ■■a, contract is liable to compensate the other party for all damages occasioned by the breach, which might reasonably be expected to flow therefrom, under either ordinary circumstances, or peculiar circumstances of which the contractor is
Attempting to apply these principles to the damages in the present case, some rules for ascertaining the damages recov
In addition to the element of damage already discussed,, denominated “lost use of factory,” the defendant is also entitled to recover the expenses of any efforts made by it, consistent with due and reasonable diligence, to avert such general damages, in the way of certain journeys of officers and employees to Racine and to Chicago to expedite the shipment of springs under this contract, after plaintiffs default became-apparent; also in the way of some other trips to find and purchase springs from others to supply the place of those plaintiff had failed to deliver on time, together with the necessary increased cost of any springs so purchased. This class of damage results from the duty of the defendant already mentioned to exercise due diligence to minimize its damages after learning that plaintiff would default. The expense of such efforts is directly attributable to the breach of the contract, and, being but the legal duty of defendant, was, of course, within the contemplation of the parties at the time of contracting.
We have now indicated, at least generally, the elements which, in the light of the counterclaim and the evidence offered, may go to make up the damages recoverable under the third counterclaim, if the jury shall find the facts to warrant them. In so doing, we have by implication shown that very many of the exclusions of evidence assigned as error were ■erroneous, and we may dispense with discussion of most of
As already said, the court should have admitted any evidence tending to prove even general knowledge on the part of the plaintiff of how the wagon business was carried on, either in manufacturing, selling, or obtaining the necessary supplies of material; whether such knowledge was derivable from its general familiarity with the wagon business, or from facts communicated to it at or prior to the time of the making of the contract.
Evidence of the custom of operating the factory, tending to show the manner in which, and extent to which, nonsupply of springs interrupted its operation and diminished its efficacy, was admissible.
Also evidence of the actual effect of absence of springs after the time at which the respondent was bound by contract to make delivery. This may involve the extent to which men were kept in idleness or the efficiency of their labor impaired, and the nonutility or lessened utility of any springs received from the plaintiff after the contract period, and especially after the alleged close of the season.
Also proof of the capacity of the shop during the period of complete or partial interruption after the springs were due, confined, however,.to that which was ordinary and usual.
We are unable to discover the relevancy,, however, of the money value of the time of men lost by reason of want of springs,, as it is not a proper specific element of recovery.
Another class of evidence which was clearly admissible was that tending to show that def endant had sufficient supply
Also evidence to prove the fact of sales in excess of what the factory was able to produce with the shortage of springs. To this end the orders received, either before or after the contract, were relevant, provided they did not exceed such as-should have been within the reasonable contemplation of the-parties.
We, however, do not deem admissible proof of the profits-on the specific vehicles included in these orders, for reasons-already stated.
Another class of evidence which, generally, should have been admitted, was that bearing upon whether a market existed from which the defendant, with reasonable diligence,, could have supplied itself promptly enough to have avoided other damage by merely paying some enhanced price for springs. In this is involved testimony which was offered that springs in quantity sufficient for factories such as this-were ordinarily obtained and obtainable only by contract long enough in advance to enable their manufacture; also-description of the springs contracted for, to the extent at least of showing whether they were peculiar in any of their details, so as to be especially adapted to the types of vehicles-manufactured by defendant.
Evidence was also admissible to show the diligence exercised by the defendant, after it had reasonable ground to believe that plaintiff would default in seasonable delivery, ra-the way of attempting to obtain springs elsewhere or to expedite the shipments from plaintiff’s place of manufacture,, and therein to show representations and promises on the part of the-plaintiff which might have induced it to forego efforts-which it might otherwise have made; as, for example, in the-release or partial release of its former contract with the Lewis-Company of Michigan.
Various letters between the defendant and the Higgins Spring Company, at whose factory plaintiff was having the contract springs manufactured, were offered in evidence. Possibly the fact of the writing of some of these letters might have been admissible as bearing upon the defendant’s diligence, but of course they are res inter alios acta, and could not be received as evidence of any facts stated in them.
Evidence having been given of the receipt of a letter from the plaintiff, referred to in a letter received in evidence, and that diligent search had been made for that letter, but that it could not be found, offer was made to prove its contents by the testimony of a witness who had seen it. This was excluded, on what theory we do not understand. If the letter itself was material and its loss was established, the foundation for secondary evidence of its contents would seem to-have existed. Notice to the plaintiff to .produce it was not essential, for there was no reason to suppose that it was in plaintiff’s custody, having been written to and received by the defendant.
The court rightly excluded evidence offered to show wilfulness of the plaintiff in its breach of the contract. Such fact was wholly irrelevant. Motive could neither create nor increase its liability in this action, founded upon breach of ‘contract.
A special contention is made that, although plaintiff might not have had knowledge of such facts as to make it contemplate all the results of its breach at the time of the making of the contract in December, still on February 23d following it entered into a new agreement, upon consideration that defendant should refrain from supplying itself with springe elsewhere, that it would deliver all the springs mentioned
From tbe foregoing it is of course obvious tbat tbe court also erred in directing a verdict in favor of the plaintiff, denying tbe defendant all recovery upon its third counterclaim. Evidence bad been introduced or offered to establish tbe breach of tbe contract, to establish, at least, various efforts on tbe part of tbe defendant to minimize tbe damages resulting from tbat breach, in tbe way of seeking to obtain springs both from tbe plaintiff and from others, and tbat it bad succeeded to some extent. Evidence bad also been admitted of certain expenses in so doing, although tbat as to other expenses bad been excluded. There was also evidence certainly tending to establish general damages in the line of impairment of tbe output of tbe factory, as above discussed, and tbe long experience of plaintiff in dealing with factories of this general character, so tbat, even from tbe evidence actually admitted, tbe jury might have found facts to warrant some recovery.
By the Gowrt. — Judgment reversed, and cause remanded for a new trial.