Lawrence v. Milwaukee, L. S. & W. R. Co.

• Decision Date: 21 March 1893
• Court: Wisconsin Supreme Court
• Parties: LAWRENCE v. MILWAUKEE, L. S. & W. R. CO.

84 Wis. 427

54 N.W. 797

LAWRENCE

v.MILWAUKEE, L. S. & W. R. CO.

Supreme Court of Wisconsin.

March 21, 1893.

Appeal from circuit court, Winnebago county; George W. Burwell, Judge.

Action by Samuel B. Lawrence against the Milwaukee, Lake Shore & Western Railroad Company to recover damages for defendant's delay in shipping a quantity of logs. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The other facts fully appear in the following statement by LYON, C. J.:

This action was brought to recover damages for the nonperformance by defendant railway company of an alleged contract to transport certain logs for plaintiff. The contract is stated in the complaint as follows: “That on or about December 11, 1889, the defendant and plaintiff duly entered into a mutual and valid agreement, wherein and whereby the defendant agreed to transport at once by rail, on its railroad, from Kempster to the city of Oshkosh, both being shipping stations on the line of the defendant railroad, about three million feet of logs for the plaintiff, on Paine Lumber Company's cars, at five cents per 100 pounds, with minimum weight of 35,000 pounds to a car, excess over 35,000 pounds at the same rate; and the plaintiff agreed to have said logs which he then and there had for shipment at said Kempster, as aforesaid, transported by the defendant, as aforesaid, from Kempster to Oshkosh, as aforesaid, upon the terms and conditions aforesaid.” The breach of the contract alleged is the failure of the railway company to commence such transportation until four weeks after the time agreed upon, to the damage of the plaintiff. Full performance of the contract by plaintiff is alleged. The damages occasioned by such delay are thus alleged in the complaint: “That by reason of the nonperformance of said agreement by the defendant on its part, as aforesaid, and such delay in the commencement of the transportation of said logs and the transportation thereof, as aforesaid, the plaintiff suffered and sustained great damages, to wit, in the delay in getting said logs to said city of Oshkosh, the loss of his own time by his employes' teams and equipments being idle during said delay, as aforesaid, and the loss of the services thereof, for expenditures and disbursements made, and to which he was subjected for the maintenance and support of his employes and teams during said delay, all arising and accruing from such delay, as aforesaid; that by reason thereof, as aforesaid, the plaintiff suffered and sustained damages to a large amount, to wit, in the sum of six hundred and fifty dollars.” If any contract was made, it is contained in two letters which passed between the parties. The first of these is as follows: “Milwaukee, December 10, 1889. S. B. Lawrence, Esq., Oshkosh, Wisconsin--Dear Sir: Referring to your call at our office last Saturday, relative to rate on about three millon feet of logs from Kempster to Oshkosh, we are willing to name you rate on logs from point above mentioned to Oshkosh when loaded in Lake Shore cars, 5 cents per 100 pounds, minimum weight 28,000 pounds; excess over 28,000 pounds at same rate. If loaded in Paine Lumber Co.'s cars, 5 cents per 100 pounds, with a minimum of 35,000 pounds; excess over 35,000 pounds at same rate. This is the rate you asked for, and rate which you said would be satisfactory to you. If you will make the shipments, please advise us promptly, that we may prepare to move them. Of course it is understood that, should it be necessary to chain the logs in order to render the transportation of same safe, that you will be willing to do so. Yours, truly, E. J. Seymour, A. G. F. A.” The second letter, which is a reply to the first, is as follows: “Oshkosh, December 13, 1889. E. J. Seymour--Dear Sir: In reply to your letter quoting rates I will say that I accept the rate you give on P. L. Co. cars. I will be down the first of the week, and make out a contract. Truly yours, S. B. Lawrence. Five cents per 100 min. 35,000 pounds logs Kempster to Oshkosh.” E. J. Seymour was the assistant general freight agent of the railway company duly authorized to make the alleged contract. December 20, 1889, the general freight agent of the railway company, C. L. Wellington, wrote to plaintiff, acknowledging the receipt of the above letter of December 13, 1889, accepting rate named by the company on logs from Kempster to Oshkosh, loaded on Paine Lumber Co.'s cars. It contains the clause: “You say in that letter that you will be down the first part of the week, and make contract. We would like some information from you as to when you will want to commence shipping, and how many Paine lumber cars you are going to put in the service, and how many you will want to ship per day, and also the amount of lumber you will move.” It does not appear that the plaintiff answered this letter directly, but by a letter bearing date January 6, 1890, the Paine Lumber Co., acting for plaintiff, who, it seems, was sick, notified the railway company as follows: “We desire to put twenty of our log cars in service on your line between Kempster and Oshkosh for hauling logs which will be loaded at Kempster by S. B. Lawrence. We have four of the cars here, which we can turn over to your company here; the rest of them are up north. We have instructed the Northwestern to deliver them to you at Watersmeet. They may find it convenient to deliver some of them to you at Appleton. As these twenty cars are delivered, it will make on your road thirty of our cars. Ten we wish to keep in service on lumber between Whitcomb and that vicinity and Oshkosh, and twenty in the log trade, as above stated.” The railroad of the defendant company extends from Oshkosh north to Watersmeet, passing through Kempster, about 110 miles north of Oshkosh and 80 miles south of Watersmeet. Its railway also extends to Appleton. The Chicago & Northwestern Railway, which is the “Northwestern” mentioned in the above letter of January 6, 1890, also passes through Oshkosh, Appleton, and Watersmeet. The letter of January 6th was addressed to “W. H. Vandergrift, Supt. M., L. S. & W. Railroad, Kaukauna, Wis.,” who replied to it by letter, under date of January 7th, addressed to the “Paine Lumber Co., Oshkosh,” as follows: “Yours, 6th inst., relative to putting twenty of your cars into log service between Kempster and Oshkosh, has been referred to Geo. T. Bidwell, Gen'l Supt., Milwaukee, who no doubt will write you regarding it.” It does not appear that the general superintendent took any action in the matter. Plaintiff commenced hauling his logs to the railroad at Kempster January 3d or 4th. It was necessary to their proper and economical shipment that the logs should have been loaded upon the cars directly when so hauled. Because the railway company did not then receive the logs upon the cars the plaintiff was compelled to pile the same on skidways, to get them out of the way. After considerable correspondence between the Paine Lumber Company on behalf of the plaintiff and the railway company, commencing January13th, the railway company, on January 21st, signified its willingness to take up the cars of the lumber company, and transport plaintiff's logs upon them to Oshkosh, and afterwards did so, commencing about January 29th, and completing the shipment April 22, 1890. Plaintiff finished putting in his logs...