108 Wis. 512 | Wis. | 1901
This is an action to recover $310.15, with interest on $246 from August 25, 1897, as damages for failure to ship from Saginaw, Mich., and deliver to East St. Louis, Ill., a car load of beans, at the agreed price of $450.50, according to the contract, whereby the plaintiff lost the sale thereof. The defendant answered by way of admissions, denials, and counter allegations, and also set up two counterclaims, arising out of other transactions, one for $38.60, and the other for $25.86. At the close of the trial the court directed a verdict in favor of the plaintiff upon the defendant’s counterclaims, and also upon the cause of action alleged in the complaint, except as to the amount of damages, and the question of the amount of damages was submitted to the jury, and they returned a verdict in favor of the plaintiff, and assessed his damages at $342.13. From the judgment entered thereon for that amount and costs the defendant brings this appeal.
The following facts are admitted or appear from the undisputed evidence, consisting of correspondence between the parties:
During the times mentioned the plaintiff resided at Milwaukee, and was engaged in the business of buying and selling beans and other products. The defendant was and is a corporation existing under the laws of Michigan, and having its principal place of business at the city of Saginaw, in
On October 8, 1896, the plaintiff wrote the defendant to “hurry the car along for Altona and East St. Louis.” The bill of lading of the car shipped by the defendant to East. St. Louis reads: “October 12, 1896. Michigan Central. Keceived from H. H. Lippert. Shipped from Fergus Falls, Michigan, to East St. Louis. Consigned to the order of Henry H. Lippert, of East St. Louis, Illinois, 200 bags of beans, to stop off at Saginaw. The car is 30j011, and it goes by way of the Clover Leaf Nailroad.” Indorsed on the bach,. “ Henry 11. Lippert.” On October 16, 1896, the plaintiff wrote to the defendant in respect to the same car load of beans: “I wish you would hurrj'’ the East St. Louis car along now, as the parties have written me for this car.” On October 17,1896, the Meyer-Schmidt Grocer Company wrote the plaintiff in respect to this car: “We are surprised at not receiving invoice and papers from you for the car of beans we purchased from you fully two weeks ago. We are needing the stock, and think the car should have been shipped before this. Please advise us immediately why the stock has not been forwarded, and if the car was shipped to-day please have a tracer started after it.” On October 19, 1896, the' defendant drew on the plaintiff for the price of this car load of beans this draft: “Pay to the order of G. B. Morley, cashier, $450.50, value received, and. charge to account of Saginaw Milling Company.” That draft was accepted by the plaintiff October 21, 1896, and paid by him October 22, 1896. On October 28, 1896, the plaintiff received from the Meyer-Schmidt Grocer Company this dispatch, in respect to-this same car load of beans: “ Car beans not here yet. Start, wire tracers for it quick.” On October 29,1896, the plaintiff telegraphed the defendant: “Wire tracer car East St. Louis. Has not arrived yet.” On the same day he received.
On November 5, 1896, the plaintiff wrote to the defendant to the effect that he was having more trouble with beans shipped from the defendant’s place than with any one else; that either the railroad company was not attending to things properly, or something was wrong elsewhere; that up to that time he would only get an advance of two cents per bushel, and that now the market had declined, and this car of beans was on his hands in another market. The defendant wrote to the plaintiff November 6,1896: “ Yours of the 5th inst. received, and contents fully noted. The delay in arrival of your car certainly warrants you in making complaint. The St. Louis car we find was delayed in the railroad yards here several days on account of a mistake in the transfer number of the car. In addition to this, we may have been somewhat slow in making the shipment. Of course, •the whole matter lies in the fact that beans have declined. In regard to the St. Louis car, get your customer to take the car at a small reduction, and we will pay you what you think right in the matter. Let us hear from you when you have made a settlement.”
The plaintiff received from the carrier at Toledo, Ohio, this letter: “ Will you please advise disposition at once car of beans from Chesaning, Michigan, October 13th, to your order East St. Louis. Shipment is in our way.” About that time the plaintiff learned that the car was in the “ Belt Warehouse,” East St. Louis. On December 16, 1896, the plaintiff wrote the defendant: “ The car of beans at St. Louis is still there, and I have ordered same into a warehouse, as it is impossible to do anything with the declining market.” On December 17, 1896, the defendant answered: “We trust you will be able to dispose of the St. Louis car to advantage a little later.” The plaintiff replied to that letter: “ If no disposition Saturday, store; insure 500 my account.” On February 12, 1897, the plaintiff telegraphod to the defendant: “Am offered 75 cents St. Louis car, October 19; advise what to do.” On the same day the defendant'telegraphed to the plaintiff: “Have nothing to say about St. Louis car.”
The plaintiff placed the beans in the hands of Moore Bros., of St. Louis, Mo., for sale in April, 1897. They tried to sell the beans from that time until August 25, 18 )7, when the
The contract being plain and unambiguous, and thus in writing, there is no room for any controversy or the admission of parol evidence as to its meaning. The defendant was to ship the beans immediately. The plaintiff was to pay §1.03 per bushel for the béans, to be delivered at East St. Louis. The plaintiff had contracted to’sell the beans on-the same day he contracted to buy them. The next day the defendant was directed to hurry up, and -eight days after-wards that the purchaser was. waiting. Three weeks after the plaintiff’s contract to purchase from the defendant and his contract to sell to the St. Louis party, that party had canceled his contract with the plaintiff by reason of the defendant’s delay in delivering the beans at St. Louis. A week afterwards the defendant in writing admitted its responsibility for such delay. The defendant declined to take the beans back, or to take charge of the sale, or to advise what should be done with them. The trial court properly held, in effect, that if it could be shown that there was any unnecessary delay which led to loss, or if the beans were dealt with improperly, that might be considered in the reduction of damages; that if the defendant had any evidence tending to reduce the damages he would hear it. ¥e perceive no error in holding, as a matter of law, that the defendant is liable for such damages as were caused by the unnecessary delay in delivering the beans at St. Louis. The question whether the carrier was liable for such delay is not here involved.
But the damages claimed and allowed are clearly excessive. "We are not aware of any rule of law which authorizes a recovery for expenses to Saginaw, for a lawyer at East St. Louis, and moneys paid for photographs, telegrams, exchange, and sundries. Actionable damages for a breach of
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial, unless the plaintiff, within thirty days after filing the remittitur herein, elects to remit such excess and take judgment for the true balance as stated, in which case judgment is to be entered for that amount in favor of the plaintiff, with costs. Rule XXXII of this court.