100 Wis. 498 | Wis. | 1898
There having been no motion for a new trial, this court cannot properly review the evidence to determine whether it does or does not support the verdict. “ The verdict must be taken as sustained by the evidence, and the only questions to be inquired into upon an appeal from tke judgment are the errors, if any, arising upon the trial in the admission or rejection of evidence, in the instruction of the court to the jury, or otherwise in the conduct of the
It is claimed that the court ought to have compelled the plaintiff to elect upon which cause of action stated in the complaint it would stand. This objection presupposes that two causes of action are therein stated. This is not so. Only one cause of action is stated, and that is for damages for breach of the charter contract. The complaint does, however, state two theories as to the measure of damages, depending upon how the jury shall find the facts. My personal opinion is that these two theories are inconsistent, but the majority of the court think otherwise, and the case must be disposed of in deference to that ruling. The court allowed testimony to be offered, and required the jury to find, upon both theories, and, upon the application for judgment, denied relief as to the one. One theory was based upon rise in freight rates, and the other upon depreciation in price of lumber, etc. The jury found on both, but the court ruled that the plaintiff was only entitled to relief upon the latter. This ruling is held to be proper, in view of the facts found in the special verdict.
It is further urged that the court erred in denying defendants’ motion for a nonsuit. A sufficient answer to this contention is that a breach of the charter contract was admitted, and on any theory of the case it should have been submitted to the jury. But it is said that the plaintiff has not submitted any proof as to the proper measure of damages, and therefore the court should have given judgment for defendants, deducting only nominal damages for plaintiff from the amount found due on the counterclaim. The damage allowed was the difference in the market price of the lumber at Chicago during the time lumber ought to have been carried under the contract, and the price when it could be
If the plaintiff had secured other barges, and had been compelled to pay increased freight rates, then the true measure of damages would have been the difference between the contract price and the price the company was obliged to pay. The Oregon, 6 U. S. App. 581, 55 Fed. Rep. 666. It must be accepted as a verity that plaintiff could not secure other vessels to transport the lumber, and hence the rule of damages above stated does not apply. There were no other means of shipment, except by rail, and whether it would have been feasible to adopt this means of transportation does not appear in the case. In Ward's C. & P. L. Co. v. Elkins, 34 Mich. 440, there was a failure by defendant to carry some cargoes of salt. Plaintiff was unable to secure other lake transportation, because of the close of navigation, lie then shipped it by rail, in small lots, and sought to charge the defendant with the difference in rates. Recovery was denied because the means adopted to carry the salt were unreasonably expensive and excessive, and it was held that the measure of damages was the difference between the market value of the salt at Chicago and Bay City, less the amount of freight fixed by the contract.
Bracket v. McNair, 14 Johns. 170; O’Conner v. Forster, 10 Watts, 418, and many if not all of the cases cited by de
It affirmatively appearing that plaintiff used reasonable diligence to secure other means of transportation, and was
Tbe fourth instruction requested by defendants and refused by tbe court bad no application to tbe case presented, Tbe plaintiff did not claim that it bad secured other vessels-to carry tbe lumber Starke’s boat was to carry, and therefore an instruction based upon any such supposition was beyond tbe issues and wholly inapplicable.
By the Court.— The judgment of tbe circuit court is affirmed.