Ayres v. Chi. & N. W. R. Co.

• Decision Date: 03 December 1889
• Citation: 43 N.W. 1122,75 Wis. 215
• Parties: AYRES ET AL. v. CHICAGO & N. W. R. CO.
• Court: Wisconsin Supreme Court

75 Wis. 215

43 N.W. 1122

AYRES ET AL.

v.CHICAGO & N. W. R. CO.

Supreme Court of Wisconsin.

Dec. 3, 1889.

Appeal from circuit court, Sauk county.Winkler, Flanders, Smith, Bottum & Vilas, for appellant.

G. Stevens, for respondents.

TAYLOR, J.

This is the third appearance of this case in this court. It first came up on a motion on the part of the defendant to make the complaint more definite and certain, and the case is reported in 58 Wis. 537, 17 N. W. Rep. 400. It came up again after a trial and judgment in favor of the plaintiff, and is again reported in 71 Wis. 372, 37 N. W. Rep. 432. On the second appeal, this court reversed the judgment in favor of the plaintiffs, for the reason that a wrong rule for the assessment of damages was adopted on the trial. As the case then stood, it appeared, as it does on the present appeal, that the two car-loads of hogs for which the plaintiffs claim to recover damages because of the failure of the railway company to furnish cars for their transportation at the time agreed upon, arrived in the Chicago market on Friday afternoon, not in time to be sold that day, but in time to be put on the market on Saturday, and that, if the company had furnished transportation on the day agreed upon, they would have arrived in time for the previous Thursday's market. This court then held, upon the evidence produced on that trial, that the plaintiffs' damages were “necessarily limited to the recovery of the expense of keeping, the shrinkage, and depreciation in value from Thursday until Saturday;” and, because the trial court refused so to limit the recovery to the damages which had accrued between Thursday and Saturday, and left the jury at liberty to include such damages down to the next Monday, this court reversed the judgment, and ordered a new trial. The case has been again tried, and a verdict has again been found in favor of the plaintiffs, and the defendant again appeals, and alleges for error that upon the last trial the court not only did not limit the plaintiffs to a recovery for shrinkage, depreciation in value, and expense for keeping from Thursday until Saturday, but allowed them to recover for such depreciation and expense of keeping of all the hogs until Monday, and of a part of them until Tuesday and Wednesday, of the following week.

Upon the evidence in this case, we think the learned circuit judge was justified in submitting the question, as he did, to the jury, whether it was possible for the plaintiffs to make sale of the hogs in the Chicago market on Saturday; and if they found, as we supposed they must have found, under the instructions of the court, that the hogs could not be sold on Saturday, then the plaintiff must necessarily keep them for the Monday's market, and if any further depreciation in value took place between Saturday and Monday, the plaintiff could recover such further depreciation as damages, as well as the cost of keeping and the shrinkage, if any, up to that date. The evidence upon which the learned judge submitted this question to the jury was, we think, sufficient to sustain the verdict of the jury that no sale of the hogs could have been made on Saturday, at any fair price. The evidence shows that Saturday is ordinarily not a good market day, and at this particular time the market was demoralized by a sudden fall in the price of hogs, commencing on Thursday and continuing for several days. The evidence also tends strongly to show that the plaintiffs made all reasonable efforts to sell the hogs on Saturday, and, although they offered them at 25 cents per 100 below the quoted market price, they could get no offer for them. The evidence tended strongly to show that on Saturday no hogs were sold except those of the first grade; that the plaintiffs' hogs were not first-grade hogs; and that an unusually large number of hogs remained on hand and unsold on Saturday evening. Upon this evidence, we think the jury were justified in finding that there was no market for the hogs in question, and that they could not be sold on Saturday. The learned circuit judge instructed the jury that the plaintiff's damages, if any, must be measured by the market value of the hogs on Saturday, and not on Monday, unless they should find that the market was so demoralized that there was in fact no market value, or any market value at which the hogs could have been sold, on Saturday. The latter part of this instruction was given in several forms, and was excepted to by the defendant. These exceptions, we think, were properly overruled.

No question was submitted to the jury as to whether the hogs could all have been sold on Monday. In fact, the agent of the plaintiffs sold two car-loads of hogs for plaintiffs on that day. Whether the hogs sold on Monday were all hogs that came in the two cars which arrived in Chicago on Friday night, or were the hogs which came in the two cars that arrived on time on Thursday, or whether they were portions of all the four car-loads, does not appear...