| Wis. | Oct 16, 1923
Each of the contracts contained the following clause: “It is hereby mutually agreed that time is of the essence of this contract.” It is the contention of the plaintiff that the failure of the defendants to deliver the specified amounts on the 1st day of May, 1920, as provided in the contracts constituted a breach; that there was no available market for the material called for by the contracts on or about May 1st; that the prices in the earliest available market had advanced at the time the plaintiff made its purchases so that the plaintiff was compelled to pay an amount in excess of the contract price equal to the amounts of damages claimed in these actions, in order to secure the undelivered material. The trial court was clearly right in holding that the provision of the contract making time the essence of the contract was waived by the plaintiff. It is undisputed that the plaintiff continued to accept deliveries under the contract down to and including the month of October. On October 7, 1920, Jolm Bushman wrote the plaintiff inquiring if the plaintiff was in the market for pulp wood. The plaintiff replied:
“We are a little surprised at this, as you have not as yet completed your contract which we had with you for the last year and this year. Just as soon as you complete this, we shall be pleased to go into' the matter of price with you further.”
“We are unable to do anything for you, as these are the prices that we are now paying.”
On February 11, 1921, Bushman & Bushman wrote:
“Regarding last year’s contract, we have not filled it last year, and if it is satisfactory to use, will fill it this winter at least some. Let me know if it is satisfactory to fill it or not.”
In reply to this letter plaintiff wrote:
“We have yours of the 11th in reference to filling your last year’s contract. This will be satisfactory to us, and as soon as you start shipping please advise us, mailing the bills of lading the day the cars go forward.”
It appears by the verdict of the jury and the undisputed evidence that the market price of the material described in the contract was the same on May 1, 1920, as specified in the contract. It also- appears that the price of the material specified in the contract was no more, if not less, after February 12, 1921, than that specified in the contract, so that upon no possible theory can the plaintiff be said to be entitled to recover more than nominal damages. While there is a conflict in the evidence as to market price on the 1st day of May, 1920, there was clearly sufficient evidence to take that question to the jury. If it be held that the acceptance of deliveries down to October 16, 1920, was merely a method by which the plaintiff’s damages were to be diminished and that up to that time there was no waiver of the breach of May 1, 1920, the plaintiff is not entitled to recover because it sustained no more than nominal damages, the market price being in the early part of May, 1920, the same as the contract price. If it be held that time of performance was extended by the letters to February, 1921,
There was no agreement to deliver in August.or September, 1920. It is the contention of the plaintiff that there was no available market until August or September, 1920, and that consequently plaintiff’s damages should be ascertained as of that date. The jury, however, upon sufficient evidence, found against the plaintiff’s contention. There being an available market, plaintiff’s damages were to be measured by the difference between the contract price and the market or current price at the time when delivery should have been completed. Sec. 1684t—67, Stats.; Malueg v. Hatten L. Co. 140 Wis. 381, 122 N. W. 1057.
The acceptance of deliveries did not postpone the date as of which plaintiff’s damages were fixed, in the absence of a valid agreement fixing a new date of delivery.
Error is also assigned because of the admission and rejection of evidence upon the trial. We have examined the matters called to our attention and find no prejudicial error.
By the Court. — Judgments affirmed.