17 Wis. 314 | Wis. | 1863
By the Court,
As a matter of course, if the court committed any errors in its rulings or instructions, it was proper to grant a new trial. We are of the opinion that it did not adopt the correct rule of damages. The defendant below requested the court to instruct the jury that the measure of damages for failure to deliver the stock was the value of the stock at the time of such failure, and interest. The court refused to give this instruction, but told the jury that the plaintiff was entitled to recover the sum of $300, with legal interest from the time of such demand, less the nominal damages to which the defendant was entitled by reason of the breach of the covenant against incumbrances and seizin.
The action was brought upon an instrument which read as follows: “ Due to Josiah A. Noonan three hundred dollars in Watertown R. Road stock. Milwaukee, 22d March, 1856. Chaeles E. Ilsley.” The question is, whether the amount of money mentioned in the note, with interest, is the proper measure of damages, or the price of railroad stock of the nominal value of three hundred dollars, at the time of the breach of the contract.
It must be admitted that the decisions of the different states upon this subject are far from being uniform ; some holding that where a note is payable in specific articles at a stipulated price, the party is entitled to recover, on a breach of the contract, the sum specified in the note, and not the actual value of the articles on the day of payment; while others hold that the actual value of the articles, and not the stipulated sum, is the true measure of damages. See Edwards on Bills and Prom. Notes, p. 723; Pinney v. Gleason, 5 Wend., 393; Smith vs. Smith, 2 Johns., 235; Vance v. Bloomer, 2 Wend., 196; Rockwell v. Rockwell, 4 Hill, 164; Gilbert v. Danforth, 2 Seld., 585;
Eor these reasons we think the order of the circuit court granting a new trial was correct, and must be affirmed.