Widman v. Gay

• Decision Date: 20 October 1899
• Citation: 80 N.W. 450,104 Wis. 277
• Parties: WIDMAN v. GAY.
• Court: Wisconsin Supreme Court

104 Wis. 277

80 N.W. 450

WIDMAN

v.GAY.

Supreme Court of Wisconsin.

Oct. 20, 1899.

Error to circuit court, Dane county; R. G. Siebecker, Judge.

Action by Carolina Widman against Leonard W. Gay. There was a judgment for defendant, and plaintiff brings error. Affirmed.

February 15, 1897, the parties entered into a written agreement by which the plaintiff agreed to sell to the defendant “all of the dirt on lots [described] above a certain grade, indicated by stakes on the corners of said lots, being 2,000 yards, more or less, at six cents per cubic yard. Party of the second part [defendant] agrees to remove said dirt from said lots by April 15th, weather permitting.” Defendant also agreed to level up the lots and redistribute the black earth on the surface. Defendant proceeded to remove said earth, and continued, with more or less interruption, claimed by him to be due to the weather, until about April 27th, when, having removed about two-thirds of the whole amount, the plaintiff forbade him further access to the lots, and sold the balance of the earth to some one else. Defendant had removed at that time somewhere from 1,200 to 1,700 cubic yards, varying according to witnesses' measurements, and had paid the plaintiff $70, whether in installments or at what time does not appear. Plaintiff brought suit to recover--First, the balance of the contract price of the earth actually taken by defendant; second, the expense of leveling up the lots and black dirt; and, thirdly, damages resulting from inability to erect and use a greenhouse on the premises as early as if the earth had been removed by April 15th. The court submitted to the jury substantially the following questions of fact: First, whether the defendant had breached his agreement by failing, without excuse from weather, to remove the earth within the time specified, so as to justify a termination of the agreement by the plaintiff; secondly, if not so in breach, was he prevented from fully completing his contract, and from obtaining all of the earth agreed to be sold him, by the acts of the plaintiff? The jury were instructed substantially that unless the defendant had so broken his agreement the plaintiff was not entitled to recover anything, either for earth taken by the defendant in excess of the $70 paid, or for either of the other elements of damage, and that, if defendant had broken his agreement, plaintiff would be entitled to recover the two elements of damage, namely, the price of the earth not paid for, and the cost of leveling the lot. The jury rendered a verdict for the defendant, on which judgment for costs against the plaintiff was entered, to review which plaintiff sues out writ of error.George W. Bird and E. Ray Stevens, for plaintiff in error.

Frank...