Seefeld v. Thacker, 93 Wis. 518

Seefeld v. Thacker

93 Wis. 518 | Wis. | 1896

MARSHALL, J.

The car of oranges which defendants offered to plaintiffs’ agent, and which the latter offered to accept if the quality of the fruit was made equal to that called for by the contract, was No. 3,800. On the subject of damages, proof was made, against defendants’ objection, of the number of boxes of oranges in an ordinary car; and this is alleged as error, on the ground that the proof should have been of the number in car No. 3,800. This turns on whether car No. 3,800 was the one called for by the contract as originally made or subsequently modified. The original contract did not call for any particular car, and, if it was not changed so as to call for car No. 3,800, plaintiff had obviously the right to recover damages on the basis of the amount of fruit in an ordinary car. Moreover, if, as appellants claim, the proof should have been confined to car No. 3,800, we are still unable to see wherein they were prejudiced, for their witnesses testified that it contained 300 boxes, and the testimony of respondents’ witnesses was to the effect that an ordinary car would contain about that number, and damages were computed on that basis, as satisfactorily appears from the record.

The court charged the jury as follows: “The damages-which the plaintiffs are entitled to recover in this case, if you find for them, are the difference between the contract price of the oranges and the actual market value of oranges of that kind in Milwaukee at the time they were to be delivered, less the cost of freight from the point from which *521they were to be shipped to the city of Milwaukee.” The contract price was $1.60 per bos and freight from the shipping point to the city of Milwaukee, the place of delivery. It is not claimed but that, testing the instruction by the written contract, it was a correct statement of the law; but appellants claim that the contract was modified by substituting Chicago for Milwaukee as the place of delivery; hence that the instruction was erroneous. The question, therefore, turns on whether there was a change in the place of delivery. The claim that such a change or modification of the contract was made rests wholly upon the request made by defendants of plaintiffs, on March 30th, to send a man to Chicago to inspect a car load of fruit which they proposed to deliver under the contract, and the compliance with such request. Such request was, in effect, that plaintiffs should pass on whether the car defendants proposed to deliver complied with the contract, at Chicago, instead of waiting until it arrived at Milwaukee. That in no way changed the place of delivery. If the car had passed inspection, it would have still been the duty of defendants to see that it was delivered at Milwaukee, as the written contract of March 23, 1894, provided. But the jury found, under proper instruc-. tions, that no car was tendered to plaintiffs’ agent in Chicago containing fruit of the kind required by the .contract, and that no car was accepted as complying with such contract ; hence, in any view of the case, the charge excepted to is free from error.

The court was requested to charge the jury as follows: “ If Mr. Smout said he would take the car offered if Thacker Bros. would change the number of boxes testified to by Mr. Soule, and Thacker Bros. did so make the change, and so told Smout, then it was Beef eld & Son’s duty and Smout’s duty to accept it, and plaintiffs cannot recover.” This request referred to the. oranges finally offered to plaintiffs’ agent at Chicago. There was no modification of the contract shown in respect *52216 the quality of the fruit. Therefore the request, so far as •applicable to the evidence, was given in the general charge in the following words: “ If you find from the evidence that the oranges which were last offered by the defendants to the agent were in fact of the sizes and quality required by the contract, and if you further find that the agent refused to accept the oranges, or stated that his firm would not accept them, then that would be a sufficient excuse for the defendants’ omission to deliver or tender the oranges at Milwaukee.” No error can be predicated upon a refusal to give a specific instruction if the subject is substantially covered by the general charge. Rockwell v. Mut. L. Ins. Co. 27 Wis. 372; Winn v. Peckham, 42 Wis. 493.

The above covers all the assignments of error presented for consideration in appellants’ brief.

By the Court.— The judgment of the superior court is affirmed.