Jacobi v. Rubicon Malting & Grain Co.

• Citation: 182 N.W. 344,174 Wis. 344
• Court: Wisconsin Supreme Court
• Decision Date: 05 April 1921
• Parties: JACOBI ET AL. v. RUBICON MALTING & GRAIN CO.

174 Wis. 344

182 N.W. 344

JACOBI ET AL.

v.RUBICON MALTING & GRAIN CO.^a1

Supreme Court of Wisconsin.

April 5, 1921.

Appeal from Circuit Court, Dodge County; M. L. Lueck, Judge.

Action by Peter Jacobi and another against the Rubicon Malting & Grain Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Action for damages caused by the failure of the defendant, who had agreed to sell plaintiffs' barley, consisting of about 812 bushels, to follow instructions given it as to the sale thereof. The cause was submitted to the jury upon a special verdict containing 10 questions, only 3 of which were material to the issues, namely: (1) Did the plaintiffs give directions on April 17, 1918, to ship their barley; (2) after receiving such instructions how soon, in the exercise of reasonable diligence, could the defendant have shipped it; and (3) the question of damages. The jury found that instructions to ship were given by plaintiffs on April 17, 1918; that within 21 days, or on May 8, 1918, the defendant in the exercise of reasonable diligence could have shipped the barley, and damages in the sum of $260. This item of $260 was in addition to $1.23 per bushel, amounting to about $990, the price at which the barley sold for July 13, 1918. The court awarded judgment to plaintiffs, with interest on both sums from July 13, 1918, and the defendant appealed.Sawyer & Sawyer, of Hartford, for appellant.

Russell & Foote, of Hartford, for respondents.

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

[1] The defendant argues the question of plaintiffs' contributory negligence at great length. It has no place in the case, and the court properly set aside the answer of the jury, finding plaintiffs guilty of contributory negligence, both on the ground that there was no evidence as he found to sustain it, and on the ground that it was not an issue in the case. If plaintiffs gave defendant directions to sell the barley, it became its duty to exercise reasonable diligence to execute such directions. If no directions were given that would constitute no negligence on the part of plaintiffs affecting defendant's liability, though the failure to give such directions might relieve defendant of liability, not because of contributory negligence, but because no duty was placed upon it to act.

[2] We have carefully examined the evidence, and reach the conclusion that it sustainsthe finding that plaintiffs ordered the barley sold on the 17th of April, and that in the exercise of reasonable diligence defendant could have shipped it within 21 days. That would have been by May 8th. There is no evidence as to the market price of barley on May 8th. The nearest dates are May 2d, when barley was worth from $1.68 to $1.79 at Milwaukee, and on May 15th, when it sold for $1.38 to $1.42 at the same place. The jury evidently took a mean between these prices as they found the damages about 32 cents per bushel. This, added to $1.23, at which it sold, would make the price $1.55 per bushel. As the...