Anderson v. Savoy

• Decision Date: 10 November 1908
• Citation: 118 N.W. 217,137 Wis. 44
• Parties: ANDERSON v. SAVOY.
• Court: Wisconsin Supreme Court

137 Wis. 44

118 N.W. 217

ANDERSON

v.SAVOY.

Supreme Court of Wisconsin.

Nov. 10, 1908.

Appeal from Circuit Court, Waukesha County; Martin L. Lueck, Judge.

Action by August Anderson against George Savoy. From a judgment for defendant, plaintiff appeals. Reversed, and remanded for new trial.

Action to recover damages for breach of contract.

The cause was tried by a referee who found as facts, thus: February 17, 1904, defendant contracted to furnish plaintiff 400 tons of ice at $1 per ton, f. o. b. cars at Pewaukee, Wis., shipments to be made at such times between April 1, 1904, and October 1, 1905, as demanded by plaintiff. $100 was paid down on the contract, and it was agreed that after delivery of 100 tons of ice settlements should be made weekly. In the latter part of May or first part of June, 1904, plaintiff demanded shipments of ice to commence and within a day or two one car load was sent forward. Thereafter whenever plaintiff demanded ice a car load was sent, up to July 7, 1904, at which time he demanded shipment of two cars a week, one on Tuesday and one on Friday, which request was not complied with. Nevertheless plaintiff continued to demand shipments of ice and from time to time some was shipped and accepted without objection. Defendant shipped ice to plaintiff without objection notwithstanding plaintiff failed to make weekly settlements according to the contract. Business was carried on as indicated till some time in October, 1905, when defendant was notified not to ship any more ice, whereupon he billed to plaintiff the ice shipped up to that time, giving him credit for payments made, and after mutual examination of the bill plaintiff told defendant he could not pay presently but would settle in a week. Plaintiff received and accepted 126 tons and 100 pounds of ice not settled for at the time of the commencement of the action. Some demurrage charges paid by plaintiff were incurred by his own neglect to unload cars according to the rules of the railroad company. He was required to pay full car load rates on some cars which, by fault of defendant, were not filled to their capacity, whereby he was damaged to the amount of $1. The written contract was modified by the conduct of plaintiff in ordering ice notwithstanding defendant had failed to strictly comply therewith, and the shipment of ice by defendant and acceptance of the same by plaintiff notwithstanding the latter's neglect to make weekly settlements as agreed upon. Plaintiff is entitled to credit for the $1 aforesaid, and defendant is entitled to judgment for $126.10, less the $1 allowed plaintiff. Judgment was rendered accordingly.

Timlin, J., dissenting.

McGee & Jeger, for appellant.

C. E. Armin, for respondent.

MARSHALL, J. (after stating the facts as above).

The findings of fact, so-called, do not appear to be contrary to the clear preponderance of the evidence, therefore, they should not be disturbed. The one to the effect that the written contract for a sale by defendant to plaintiff of 400 tons of ice f. o. b. cars Pewaukee at a stipulated price, the same to be loaded for shipment from time to time as demanded by plaintiff between April 1 and October 1, 1904, was modified by mutual agreement as to delivery of the full amount within such time, is more in the nature of a conclusion of law than one of fact. It is based on these evidentiary circumstances: Appellant ordered ice and received and used the same notwithstanding respondent had breached the agreement by failing to ship two cars per week as demanded and to pack that which had been shipped in the manner agreed upon, and respondent continued to ship ice within a reasonable time on orders notwithstanding appellant had not paid for prior shipments according to contract.

Since it is undisputed in the evidence that had ice been shipped at the rate of two cars per week as demanded all would have been delivered within the time agreed upon and plaintiff had use therefor and did not refuse to receive ice till the close of the season and after the time limited by the writing for making deliveries, we are unable to see how it can be rightly said that the necessary inference from the circumstances found is that plaintiff waived the provision of the agreement entitling him to the full amount, or that the situation disclosed any probability that the minds of the parties met as to such waiver.

Appellant's demand for and receipt and appropriation of ice without objection, notwithstanding the breach, bound him to pay for what he obtained as being the kind of product contracted for but did not, necessarily, affect his right to damages caused by the delay in shipping according to the demand for two cars per week or for failure to seasonably forward the full amount. His conduct in that regard and respondent's consent to ship ice notwithstanding the delayed payments, are perfectly consistent with the former's retention of such right.

Though the foregoing requires a reversal of the judgment there is an insuperable difficulty in the litigation being finally terminated without some further proceedings in the trial court. The evidence in the record does not furnish any legitimate basis for an assessment of damages according to the rules governing the subject.

No principle is better established than that damages for breach of contract, under ordinary circumstances, are limited to such as may be considered to arise according to the usual course of things from such breach and so must be regarded, reasonably, as having been in contemplation by the parties at the time of making the contract as the probable result of the breach of it, or, in case of special circumstances, such as may reasonably be supposed to have been in such contemplation in view thereof so far as such...