Cockburn v. Ashland Lumber Co.

• Decision Date: 05 April 1882
• Citation: 54 Wis. 619,12 N.W. 49
• Parties: COCKBURN AND ANOTHER v. ASHLAND LUMBER CO.
• Court: Wisconsin Supreme Court

54 Wis. 619

12 N.W. 49

COCKBURN AND ANOTHER

v.ASHLAND LUMBER CO.

Supreme Court of Wisconsin.

Filed April 5, 1882.

Appeal from circuit court, Eau Claire county.

The action is to recover damages for the entire failure of the defendant to fulfil a contract in writing entered into by the parties for the sale and purchase of two cargoes of a kind of lumber known as “deals.” The contract is as follows:

“It is this day, the fifth day of February, 1878, mutually agreed between the Ashland Lumber Company, of Ashland, Wisconsin, and McRae & Cockburn, of London and Toronto, Canada, that the first-named parties sell, and the second-named parties purchase, two cargoes of white pine deals, each cargo to be of about 300,000 feet, board measure, and to be of the following specification of qualities and sizes, and not less than 75 per cent. first quality and not more than 25 per cent. second quality, all 3 inches thick; 85 per cent. 12 feet long; 5 per cent. 8 to 10 feet long, principally 10 feet; 10 per cent. 13 to 20 feet long, principally 16 feet; 90 per cent. 11 inches and up wide; 10 per cent. 7 to 10 inches wide. The whole to average not less than 14 1/2 inches wide. All to be well manufactured and square butted, and culled in accordance to the Quebec custom of culling such qualities and sizes, and by a qualified culler appointed by purchasers. Sellers to pile the said deals on their docks and property in Ashland, two or three cross-pieces of any seasoned slats between each layer or row of deals, and sufficient space between each deal of each row (to the approval of purchasers) so as to admit of a free current of air between each deal.

One cargo to be ready for shipment on or before the first of July next; second cargo to be ready for shipment on or before the twentieth of July next, seller delivering each cargo on rail of schooner sent by purchasers for them, and as fast as required by master of the vessels; it being understood purchasers are to send the vessels within 30 days after the respective dates mentioned above for delivering of each cargo. Purchasers to pay for said deals at the rate of $18, American currency, per 1,000 feet, board measure, for the first quality, and at the rate of $10, American currency, for 1,000 feet, board measure,for the second quality, when shipped on board the schooner at Ashland, Wisconsin. Purchasers agree to make sellers' advances on the foregoing contract to the extent of $3,000, by purchasers' acceptance of C. Stadely's drafts, say one draft payable the tenth of March next for $1,000; one draft payable the tenth of April next for $1,000; one draft payable the tenth of May next for $1,000,--sellers paying purchasers' interest on such advances at the rate of 10 per cent. per annum from date of maturity to shipment of cargoes.

Dated and signed in Ashland, Wisconsin, this fifth day of February, 1878.”

Judgment is demanded for $6,109.61. The plaintiffs had a verdict for $50. They moved for a new trial, and have appealed from an order denying the motion. The case is further stated in the opinion.

J. J. Miles, for appellants.

John H. Knight, W. M. Tomkins, and L. M. Vilas, for respondent.

LYON, J.

It is conceded that none of the lumber contracted for was ever delivered by the defendant company, and it is not claimed that the plaintiffs made any default in the performance of the contract on their part. The plaintiffs are, therefore, entitled to recover in the action, and the only matter to be determined in this appeal is the rule of damages. The general rule in actions to recover damages for the breach of an executory contract to sell and deliver goods, is that the difference between the market price of the goods at time and place specified in the contract for delivering the same, and the contract price, is the measure of damages. The basis of this rule is that on failure of the vendor to deliver the purchaser may go into the market at the time and place of delivery and supply himself with the same kind of goods at the market price. Hence, the difference between what he is compelled to pay for the goods, and what they would have cost him had the vendor performed his contract, justly measures the damages which he has sustained by the breach of the contract. But this rule presupposes that the purchasers may go into the market at the agreed time and place of delivery and obtain the goods. If no such goods can then be obtained at that place, there can be no market price there by which to measure the purchasers' damages. The idea that there can be a real, substantial market price for a given commodity, when there is no such commodity for sale in the market, is absurd. If, therefore, there were no deals for sale in the Ashland market from July 1 to July 20, 1878--the times of delivery specified in the contract--of the grades and dimension therein specified, we must find some other rule by which to measure the plaintiff's damages.

Testimony was given on behalf of the defendants that there was a market price for deals of the grades specified in the contract at Ashland and Bayfield, and that the same price obtained in Ontonagon and Hancock,--the former place being 100 and the latter 120 miles distant from Ashland. We need not stop to inquire how the plaintiffs would be affected thereby could they have purchased a like quantity, quality, and description of deals in those markets in July, 1878, because there is really no evidence that they could have procured the same in either or all of them. The evidence is conclusive that they could not have supplied themselves in the markets of Ashland or Bayfield. As to Ontonagon, the only testimony is that there were 3,000,000 feet of logs there in 1878, which would make 25 per cent. of deals of the quality specified in the contract. There is no evidence that any deals were cut or that they could have been procured at that place during that year. There is evidence to the effect that 600,000 or 700,000 feet were manufactured at Hancock in 1878. The grade or dimensions of the Hancock deals, or the time when manufactured, does not appear. It does appear, however, that the same were manufactured for Chicago parties. The evidence would not support a finding or verdict that deals were kept in stock for general sale at any of these places, or at any place in the Lake Superior region. All of the proofs tend to show that this kind of lumber is usually manufactured to fill special contracts therefor. It is not claimed that the defendant company informed the plaintiffs they could obtain the deals elsewhere; and the managing owner of the company testified that the company could not have purchased the same. If it could not, it is difficult to understand how or where the plaintiffs could do so.

We conclude that the evidence fails entirely to show that the plaintiff could have purchased any deals like those specified in the contract, at any of the places before mentioned, in July, 1878, and hence that there was no market price for such deals at any of those places; or, at most, but a merely nominal market price, which furnishes no basis for ascertaining the plaintiff's damages.

The learned circuit judge submitted the question to the jury whether there was a market price at Ashland, or in that vicinity, for such deals as the contract called for, at the time the same were agreed to be delivered, and whether the plaintiffs could have then purchased the same in the Ashland market, or in that vicinity. There being no sufficient evidence to support an affirmative finding on that question, it was error to submit it to the jury. Spaulding v. C. & N. W. Ry. Co. 33 Wis. 582, and cases cited; Read v. Morse, 34...