Salvo v. Duncan And Another
| Decision Date | 30 March 1880 |
| Citation | 4 N.W. 1074,49 Wis. 151 |
| Parties | SALVO v. DUNCAN and another |
| Court | Wisconsin Supreme Court |
March 16, 1880, Argued
APPEAL from the Circuit Court for Columbia County.
This action was commenced in July, 1877, in Taylor county, and removed to Columbia county for trial.
On the 15th of June, 1876, the defendants, Duncan and Taylor entered into a contract with the plaintiff, by which plaintiff was to cut on certain lands, haul, drive and deliver to defendants at their mill at Westboro in this state, 2,000,000 feet of pine logs before the 15th of September, 1876; and defendants were to pay plaintiff $ 2.50 per M. feet of said logs after the same should be scaled and delivered at said mill. Defendants further agreed to furnish plaintiff with feed, hay and provisions, as fast as the same should be needed, for men and teams. The complaint alleges that, after the making of said contract, plaintiff immediately hired a crew of men and procured teams sufficient to fulfill his part of the contract; that with such men and teams he went into the woods and commenced cutting and hauling the logs mentioned in the contract, and was ready and willing to fulfill his part thereof; that he applied to defendants for a supply of provisions for men and teams necessary for a vigorous and successful prosecution of the work, but defendants neglected to furnish the same in sufficient quantities to enable the men and teams to labor continuously at said work; that in consequence the men and teams were idle a large portion of the time, and, when plaintiff attempted to use his teams in said work, they were not able to perform as much labor as they would have done if sufficiently fed; that from the 11th to the 22d of July 1876, defendants furnished no feed whatever for said teams although requested so to do by plaintiff, and in consequence the teams were idle the whole of that time; that by reason of such failure and neglect of defendants, plaintiff was unable to deliver the whole amount of logs mentioned in the contract, within the time limited for that purpose; but that he did cut, haul and deliver to defendants at said mill, in pursuance of the contract, 987, 367 feet of logs, which were accepted by the defendants, and for which he was entitled to receive from them $ 2,723.27 according to the contract price and that there is now due him thereon $ 672, which defendants have refused to pay on demand, which amount with interest he claims in this action.
For a second cause of action, after alleging at length his own readiness and attempts to perform the contract, and defendants' neglect to furnish provisions for the men or feed for the teams, and his consequent inability to deliver more than the 987,367 feet of logs before mentioned, the plaintiff further avers that the expense to him of delivering said logs was greater, by at least $ 300, than it would have been if defendants had furnished supplies so as to enable the men and teams to labor all the time; that plaintiff would have completed the contract within the time limited for that purpose, if defendants had provided the necessary supplies at such a cost as would have left him a clear profit of $ 2,000 on the 2,000,000 feet; and that he had therefore sustained damages in the sum of $ 2,300 by reason of defendants' failure to perform the contract.
There was a third cause of action for $ 173, which need not be stated here.
The answer denied all averments of failure to perform the contract on defendants' part.
On the trial, defendants appear to have objected to all the evidence offered by plaintiff to snow the increased cost of getting out and delivering the logs actually delivered, caused by defendants' default. There were also some other exceptions to the admission of testimony, which will appear from the opinion.
The court instructed the jury that, although full payment was not to be made for the logs until after their delivery at the mill, yet defendants were to furnish supplies and provisions as the work progressed and as the logs were scaled; that, as the amount needed for this purpose would be but a part of the contract price, and probably much the smaller part of it, and as the logs were to be scaled on the bank of the river when daily cut, it seems to have been contemplated by the parties that the furnishing of supplies should commence when the work commenced, and should continue as the work progressed, in sufficient quantities to enable the work to be prosecuted with vigor and without unnecessary delays. The jury were further instructed that if they found plaintiff's claim true, and the defendants in substantial default, and the plaintiff guilty of no default, and that he might have fulfilled his contract but for the continued default of the defendants, then he was entitled to recover not only the contract price for the logs which he got out, but damages caused him by the delay in getting them out, and profits which, but for such default of the defendants, he might have made on the remainder of the logs called for by the contract. The other portions of the instructions given do not seem to be important here.
Plaintiff had a verdict for $ 828.82; a new trial was refused; and defendants appealed from a judgment on the verdict.
Judgment affirmed.
For the appellants there was a brief by S. A. Corning, their attorney,...
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