Schubert v. Midwest Broadcasting Co.
| Decision Date | 08 October 1957 |
| Citation | 1 Wis.2d 497,85 N.W.2d 449 |
| Parties | Bernard L. SCHUBERT, Respondent, v. MIDWEST BROADCASTING CO., a corporation, Appellant. |
| Court | Wisconsin Supreme Court |
A. L. Skolnik, Milwaukee, for appellant.
Marshutz, Hoffman & Hallows, Milwaukee, Ellis R. Herbon, Milwaukee, of counsel, for respondent.
Walter Schwimmer Productions, Inc., was the producer and owner of a television quiz program called 'Movie Quick Quiz.' In January, 1954, the defendant operated a television broadcasting station in Milwaukee. On January 4, 1954, a contract was entered into between Walter Schwimmer Productions, Inc., hereinafter referred to as the producer, and the defendant whereby the defendant was licensed to produce and agreed to telecast the Movie Quick Quiz over its station for a period of two years beginning January 11, 1954, with an option to cancel after the first 56 weeks. The producer agreed to furnish the defendant prints of minute movies, supply question and answer material, instructions for the operation and presentation of the show, and all other materials necessary except for items agreed to be furnished by the defendant. The show was to be furnished by the producer during the first four weeks without charge. Thereafter the defendant was to pay the producer the sum of $100 per week except that the price was to be $150 per week in case the defendant sold the program to one sponsor. In addition to the films and materials, the producer agreed to furnish a minimum of five and a maximum of fifteen United States savings bonds per week with a face value of $25 each for jackpots. In return therefor the defendant agreed to schedule the bonds as prescribed by the producer and to use free advertising called plugs for bond donors as submitted by the producer. Defendant used the show from January 11, 1954, until April 30, 1954. On April 22, 1954, the producer and the defendant executed an amendment to the contract as follows:
In August, 1954, the defendant communicated with the producer indicating its inability to restore telecasting of the show on September 6, 1954, and the contract was again amended by extending the hiatus period to October 6, 1954. Telecast of the program was never resumed by the defendant.
In November, 1954, Walter Schwimmer Productions, Inc. assigned its contract to the plaintiff. Walter Schwimmer, president of the Walter Schwimmer Productions, Inc., continued negotiations with the defendant for restoration of the telecast of the program on behalf of the plaintiff pursuant to authority from him.
On February 10, 1955, the producer was notified that the defendant was suspending operations at midnight on February 26. Thereafter the present action was commenced to recover the sum of $4,040. For the twelve weeks during which the show was telecast the defendant had paid the sum of $1,160 and plaintiff claimed the sum of $4,000 for the remaining period of 40 weeks during which the defendant had failed, neglected and refused to perform its part of the contract. The first answer to the complaint admitted that the defendant owed the plaintiff the sum of $40, but by way of defense alleged that the parties had mutually agreed to rescind the contract. Later, with leave of the court, the defendant filed an amended answer alleging as a second defense that the defendant had been induced to sign the contract by means of false and fraudulent representations on the part of the producer.
Upon this appeal the defendant makes no contention that the contract was rescinded by mutual agreement. To substantiate its allegations of fraud the defendant's manager testified that the producer's sales manager agreed to furnish two sponsors for the program and to donate certain valuable merchandise prizes for award to viewers of the program as consolation prizes when they failed to answer the jackpot question. Those allegations were denied by Mr. Schwimmer and by the sales manager for the producer. Much correspondence between the producer and the defendant appears in the record. Defendant's manager testified that the producer's failure to provide sponsors and additional prizes was known to the defendant prior to the time the program was taken off the air. In spite of this knowledge the defendant executed two amendments to the contract and sought further delay in the resumption of telecasting the show.
We have carefully reviewed the record and are satisfied, as was the trial court, that the defendant failed to establish its allegations of fraud by the clear and satisfactory evidence required.
In support of its motion for a new trial the defendant filed two affidavits to which were attached five letters, three written to the defendant by the producer's sales manager and two written to the producer by the defendant. It was alleged in one of the affidavits that those letters had been delivered to an attorney for the defendant who was not employed by the defendant for the purposes of this trial; that said letters were returned to the defendant by said attorney after the trial. In a memorandum decision on the motion the trial judge stated that he had carefully considered the affidavits and the letters in the light of the testimony adduced at the time of the trial and that even if he construed them most favorably to the defendant there would be no change in the outcome of the case.
We, too, have carefully considered the affidavits and the letters, and we can find no error on the part of the trial court in denying a new trial.
The defendant finally contends that the damages found by the trial court are excessive. The trial court relied upon cases cited in an annotation in 17 A.L.R.2d on page 968. This annotation refers mainly to particular types of contracts that call for exceptions to the general rule for establishing damages in breach of contract cases. Based upon these cases the trial court held that the prima facie measure of damages in this case is the contract price with the burden on the defendant to establish savings to the plaintiff from relief of performance.
We do not believe that to be a correct statement of the rule for the determination of damages in this case. The fundamental idea in allowing damages for breach of contract is to put the plaintiff in as good a position financially as he would have been in but for the breach. Damages are the compensation which the law will award for an injury done. Plaintiff was entitled to a performance of the contract. Any savings made by the plaintiff because he was not required to perform the contract...
To continue reading
Request your trial
-
AVL Powertrain Eng'g, Inc. v. Fairbanks Morse Engine,
...other party in the position in which it would have been had the contract been fully performed. See e.g., Schubert v. Midwest Broadcasting Co. , 1 Wis.2d 497, 502, 85 N.W.2d 449 (1957).11 In fairness, there is some authority to support the proposition that a party's limited efforts to mitiga......
-
United Concrete & Constr., Inc. v. Red-D-Mix Concrete, Inc.
...Envirodyne, No. 09–C–0131, 2013 WL 501419, unpublished slip op. at *10 (E.D.Wis. Feb. 11, 2013) (quoting Schubert v. Midwest Broad. Co., 1 Wis.2d 497, 502, 85 N.W.2d 449 (1957) and DeSombre v. Bickel, 18 Wis.2d 390, 398, 118 N.W.2d 868 (1963)). A party satisfies its burden at summary judgme......
-
Hussain v. Ascension Sacred Heart -- St. Mary's Hosp.
...it is unclear what compensatory damages, if any, other than attorney's fees and costs are justified. See Schubert v. Midwest Broad. Co., 1 Wis. 2d 497, 502, 85 N.W.2d 449 (1957) ("The fundamental idea in allowing damages for breach of contract is to put the plaintiff in as good a position f......
-
Cardinal Consulting Co. v. Circo Resorts
...197 Minn. 626, 268 N.W. 634 (1936); Benfield v. H. K. Porter Co., 1 Mich.App. 543, 137 N.W.2d 273 (1965); Schubert v. Midwest Broadcasting Co., 1 Wis.2d 497, 85 N.W.2d 449 (1957), and that the only way of showing expenses saved is through the use of expert financial evidence. Tonchen v. All......