56 Wis. 35 | Wis. | 1882
The judgment must be reversed for several errors committed on the trial. Some of these rulings will be noticed.
1. One of the plaintiffs, among other things, in effect, testified that the lumber received by the plaintiffs, under the contract in suit, was not as good as that called for by the contract; that two-thirds of it was common shop lumber, and while explaining the difference in value between the lumber actually received and that called for by the contract,
This construction is confirmed by the clause which follows, whereby all the coarse and defective logs were to be excluded, and made into shingles, leaving the estimated amount of lumber suitable to fill the contract only about sixty-six per cent, of the log scale. Certainly the plaintiffs had the right to show by competent evidence that the lumber furnished did not fulfill the several requirements contracted for. It cannot be presumed that there was no merchantable lumber which would not come within the stipulations of the contract. It appears from the evidence that during the time the plaintiffs were receiving the lumber delivered to them under the contract, they several times notified the defendant that the quality of the lumber was inferior to that called for by the contract, and that the plaintiffs would look to him for damages, because the lumber received was not up to the standard. This being so, the court could not arbitrarily shut
2. The counsel for the plaintiffs requested the court to instruct the jury that “ the fact that the defendant may have had a contract with Haywood, or any other particular party, who may have failed to fulfill, constitutes no defense to this action.” The court refused to so instruct, and the plaintiffs excepted. The defendant’s counsel argues that the second part of the answer setting up the Haywood contract states a defense, and that the plaintiffs “having a contract for a certain amount of lumber in writing it would be competent for the parties to agree to accept a particular lot of logs in discharge and satisfaction of the prior written contract, though less in quantity, and the performance of the last contract would be a discharge of the former.” To support this, three cases are cited from this court — Jones v. Keyes, 16 Wis., 562; Jilson v. Gilbert, 26 Wis., 637, and Merriam v. Field, 29 Wis., 592. But those cases are clearly distinguishable. The allegation of the answer is that the Haywood contract was executed “ at and before the execution of ” the contract between the plaintiffs and the defendant, and that if the defendant delivered to the plaintiffs “ all the lumber sawed from the logs which might be delivered to the defendant by said Haywood under his and the defendant’s said contract, and piled as provided in the said paper, Exhibit A (contract in suit), that the same would and should be in full satisfaction of said contract, Exhibit A.” Such was the tendency of the evidence given on the part of the defendant against the objection of the plaintiffs. This can be justified only upon the ground that the plaintiffs were not only bound to take the lumber manufactured from the Haywood logs, but that Haywood’s
3. The court was requested to charge the jury that, “ on the question of sleighing, it is not whether the sleighing on any particular road was good or bad, but whether the general run of sleighing at Spencer, Wisconsin, during the winter of 1879-80 was a fair run of sleighing, and the defendant could, by Making extra effort, get in the amount of logs specified in the plaintiff’s contract.” “ If you find that the sleighing
There are, probably, other errors, but as they may not
By ike Court.— It is so ordered,