183 Wis. 396 | Wis. | 1924
Lead Opinion
The following opinions were filed February 12, 1924:
It is the contention of the plaintiff that the contract called for the delivery of the total output of the Kentucky Beaver collieries, located in Floyd county, Kentucky, from March 1, 1920, to March 31, 1921, at the
We see no difficulty in sustaining the contract. It- is clear and unambiguous. It was made upon sufficient consideration and was capable of being executed. The mine was a developed and operating mine. Its output was approximated. It was entirely possible for the mine to produce large quantities of coal and deliver the same as provided in the contract. It did produce a definite and ascertained amount of coal during the contract period. We must therefore affirm the validity of the contract and treat it as capable of being performed.
The verdict of the jury and the judgment of the court that Gladney acted with apparent authority, and that the plaintiff reasonably relied upon such apparent authority in executing the contract, were not excepted to by the defendant and are not brought before the court on cross-appeal. The validity of the execution of the contract, therefore, stands as a verity. If the question were before us, we would not hesitate to find that the contract was lawfully executed on the part of the defendant.
The direction of the plaintiff to the defendant that the coal be consigned to the Steel & Tube Company of America was within the contract provisions, and the question of
A considerable time was taken up at the trial concerning transportation problems from the mine to the' outside markets. This was beside the issue. The issue was the difference between the market price f. o. b. at the mine and the contract price. 'Transportation problems may have affected that price, but the price was proven by direct evidence of the fact.
As we view this case there was but one' question sharply litigated, and there is but one question here, and that is, What was the measure of damages that plaintiff suffered by reason of the defendant’s repudiation of- its contract? The contract called for the output of the mine. That output was indefinite and uncertain, but it was capable of being made certain, and at the trial the fact was undisputed that the output was a total of about 14,800 tons. The contract price of the coal was $3.15 per ton f. o. b. at the mine, but this was subject to being increased if the wages of miners were increased during the contract period. They were so increased, which increased the cost of the coal. So that the total difference between the contract price and the market price amounted to $38,339.11. This seems to us the measure of damages, as presented by plaintiff’s case.
The fundamental idea of allowing damages.for breach of contract is to put the plaintiff in as good a position as he would have been but for the breach, — this according to principles of justice. Departures from this elementary principle come from inability to apply the rule under all circumstances. In the present case we find no insuperable difficulty in ascertaining to a reasonable certainty plaintiff’s damage within the rule. 8 Ruling Casé Law, “Damages,” § 8; 1 Sutherland,. Damages, § 12; 3 Williston, Contracts, § 1338.
The plaintiff is not to profit by defendant’s breach; it is to
The defendant attempted to prove that for the last three months of the contract period the mine was closed down for lack of orders, but that had the mine been operated, under the contract as claimed by plaintiff, it could and’ would have produced the coal as estimated in the contract, modified by the proof as to the probable production. Defendant claims on that basis a deduction of the difference between the contract price and the market price at point of delivery — the sum of $9,535, — which plaintiff would have lost during the three months if the contract had been carried out. Plaintiff submitted some evidence to that effect. The record is indefinite and uncertain on this point. As we remember it, this estimate of loss for the last three months by the defendant was not questioned on the argument. The question arises, assuming this loss to be true, should the amount be deducted from the damages established by plaintiff? We think it should. The contract called for the entire output of the mine within the contract period. The deliveries were to be made by instalments in carload lots. The output is estimated in the contract. The situation under the proofs is unusual, but the fair measure of damages, it would seem, is the value of the- contract to plaintiff as it would have been if performed as a whole, if that is reasonably ascertainable. The actual output for the period of the term of the contract was ascertained at the trial. The probable output for the last three months of the term, had the contract been in operation, was attempted to be estimated within the contract conditions. We think on a retrial of that question the value
By the Court. — The judgment of the circuit court is reversed, with directions to enter judgment for the plaintiff for $38,339.11, less $9,535, provided the plaintiff shall file with the clerk of the circuit court, within ten days of the filing of the remittitur herein, its acceptance of the defendant’s claim for deductions to that amount; otherwise to. grant a new trial for the purpose of allowing the defendant to establish its claim for such deduction; the plaintiff’s claim for $38,339.11 to stand as proven, subject only to such deduction as may be established by the defendant in accordance with this opinion; the plaintiff to have costs in this court.
Dissenting Opinion
(dissenting). I dissent from so much of the decision as holds that the seller is entitled to offset losses computed on the estimated output of the mine during the months which it did not operate. The subject matter of the contract was the output of the mine, and the plaintiff cannot be charged with a loss on account of coal which was not mined. The plaintiff was in no way responsible for the failure of the mine to operate. To permit the defendant to offset the estimated amount of the production of the mine during the three months it did not operate is to permit the defendant to take advantage of its own default. It in effect permits the defendant to recover the amount of plaintiff’s losses for that period. If the defendant wished to take advantage of the contract it should have tendered the coal, it
A motion for a rehearing was denied, with $25 costs, on April 8, 1924.