Lyle v. McCormick Harvesting Mach. Co.

• Decision Date: 30 October 1900
• Parties: LYLE v. MCCORMICK HARVESTING MACH. CO.
• Court: Wisconsin Supreme Court

108 Wis. 81

84 N.W. 18

LYLE

v.MCCORMICK HARVESTING MACH. CO.

Supreme Court of Wisconsin.

Oct. 30, 1900.

Appeal from circuit court, Dodge county; James J. Dick, Judge.

Action by William J. Lyle against the McCormick Harvesting Machine Company to recover for breach of contract to redeliver a note. From a judgment for plaintiff, defendant appeals. Affirmed.

The following facts are alleged by the complaint, and substantially found to exist by a special verdict had after trial, to wit: The plaintiff, on January 3, 1898, purchased from the defendant a corn husker, a sale of which in the previous year had, by consent, been rescinded, and on that day gave therefor his negotiable note for $150, due December 1, 1898, under a contract signed by both parties, whereby the defendant agreed to fix the husker in first-class shape, “make the same do good work, and satisfactory to the average witness for whom W. J. Lyle may husk corn in 1898; the machine subject to one day's trial. If the company fail to comply with any part of this agreement, Lyle can return the machine to Fox Lake, and his notes will be returned,” etc. Plaintiff notified defendant of his desire to start the machine on January 21st, and called on them to make it work. Their duly-authorized agent attended at the time, but went away without starting the machine, as he claims, by consent of plaintiff, but, as plaintiff claims, without such consent. The jury found with the plaintiff. Thereafter, on March 23d, the plaintiff returned the machine to Fox Lake, notified defendant of the fact, and then, or on April 14, 1898, demanded return of his note, which was refused. It also appeared that before commencing this suit the note had been transferred to an innocent third party, for value, and by him sued and put in judgment against the plaintiff in the sum of $166.20, of date February 7, 1899, which the plaintiff had not paid. There was some evidence of plaintiff's own declarations, made before suit upon the note, that he was execution proof. Whether the negotiation of the note preceded or followed plaintiff's demand for its delivery did not appear. The only questions of the special verdict involved in the errors assigned are the sixth: “Did the plaintiff consent, expressly or impliedly, to postpone the fixing and testing of the machine, or that it need not be done on January 21, 1898?” answered, “No;” and fifteenth: “At what sum do you assess plaintiff's damages?” answered, “$150.” Motion for nonsuit was made at the close of the plaintiff's case, and motion to direct a verdict for the defendant at the close of all the testimony, for the reason, among others, that the plaintiff had failed to prove any damages. Defendant also requested instruction that only nominal damages could be awarded. Such motions being overruled, defendant requested submission of the question: “Could the judgment obtained by J. H. Weber against the plaintiff upon his note, which has not been paid, be collected upon execution?” which request was refused. Plaintiff also requested an instruction as follows: “I instruct you that it is immaterial whether plaintiff or defendant first suggested that the machine should not be tried or tested on January 21, 1898, by Mr. Jones. If the plaintiff agreed or consented, expressly or impliedly, by word or act, that the machine need not be tried at that time, then your answer to the sixth question must be in the affirmative.” That also was refused. From a judgment for plaintiff upon the verdict for the sum of $150, interest, and costs the defendant appeals.Quarles, Spence & Quarles, for appellant.

North & Lindley (M. L. Lueck, of counsel), for respondent.

DODGE, J. (after stating the facts).

1. The first, second, and third assignments of error naturally fall together for the purposes of discussion. They present the question whether plaintiff has shown himself entitled to any damages, and, if so, to what amount. These questions were raised by the motion for nonsuit and for direction of verdict and for an instruction to allow only nominal damages for the reason that no actual damages had been proved. Appellant's position is predicated upon the propositions: (1) That the action is not in tort, for the reason that the disposal of the note by the defendant is not alleged to have been wrongful, and that it is neither alleged nor proved that the note was in its possession or control at the time when plaintiff's contract right to and demand for its delivery came; therefore no conversion or other wrong could be committed by refusing its delivery. (2) That, being an action on contract, it falls within the class of those where the contract is substantially one of indemnity, and in this case is to be construed as indemnity only against the damage resulting from liability on the note, and therefore cannot be maintained until damage has been actually suffered by the compulsory payment of the note or the judgment thereon. (3) That, defendant being insolvent, the note has no value, and liability thereon occasions him no damage.

In the view we have taken of the other propositions, the first need not be authoritatively decided. It is suggested in response thereto that, although no tort may have been committed at the time of refusing plaintiff's demand, still the defendant was under a duty to retain the note within its control so as to enable its delivery in case the plaintiff demanded it, and that its disposal thereof even before demand was in breach of that duty to the plaintiff. and therefore a conversion. In either event the measure of damage would be the value of the note prima facie, there being no special damages alleged. Such value, of course, might involve consideration of plaintiff's financial condition, and perhaps other circumstances.

The second proposition presents an interesting and somewhat novel question, upon which no entirely direct authority has been cited, and little has resulted from our own research. The principle is well recognized that, in case of an agreement to indemnify, ordinarily the construction of indemnity against damages only will be adopted, rather than indemnity against mere liability. This proposition is decided in Thompson v. Taylor, 30 Wis. 68, 72, and Taylor v. Coon, 79 Wis. 83, 48 N. W. 123, while the enforceability of a contract of indemnity clearly against liability alone is established by Smith v. Railway Co., 18 Wis. 17, 24. This contract before us, however, on its face is not a contract of indemnity. It is a plain and simple contract, under the circumstances shown to exist, to deliver up plaintiff's note upon demand. That demand being made, and not complied with, a distinct and complete breach of defendant's contract was committed, and no reason is apparent why the plaintiff should not have a right to maintain an action upon such breach for whatever damages he has suffered. The measure of damages in an action for the breach of a contract is, of course, contractual. It is that which the defendant, either expressly or impliedly, has agreed to pay upon nonfulfillment of his stipulation. Where there is no express agreement as to what those damages shall be, the law raises the implication that they shall be compensation for what the plaintiff suffers by reason of the breach, so far as reasonably to be contemplated by the parties at the time of contracting. Analyzing the situation in the light of that principle, obviously the damage which fell upon the plaintiff in this case by reason of noncompliance with the agreement to deliver up his note was the continued existence against him of a liability thereon; a liability the very existence of which was a breach of his right. The question, therefore, for trial was, what would compensate him for that liability? It cannot be said that the damage which he suffered by defendant's breach of its contract could only be what he might at some future time have to pay, for that would not be the damage falling upon him at the time of and by reason of the breach. That would result from various subsequent circumstances. If the note were in the hands of the defendant, overdue, so that a perfect defense thereto might be made, he might ultimately have to pay nothing, or only the expenses of defense, while under other circumstances he might be put to expense and pecuniary loss much greater than the amount of the note. In Barth v. Graf, 101...