Richardson v. Chynoweth

Paine, J. If the circuit court refused to allow the defendant to file an amended answer upon the ground of .want of power, we think it was mistaken. The appeal being from a judgment of a justice, for more than fifteen dollars, the statute provides that it should be tried in the circuit court as a case originally brought there. And it has been held by this court [659] that in such a case the plaintiff may be allowed to amend so as to claim a sum in the circuit court beyond the jurisdiction of the justice. Dressler v. Davis, 12 Wis. 58. Also that a defendant may be permitted to file an answer at the circuit, although he did not appear at all in the justice’s court. Burnham v. Turner, 14 Wis. 622. The only doubt we have had was, whether the proposed answer sets up any valid counterclaim. If it does, it is a somewhat unusual one, and the general allegations of damage may be difficult to substantiate definitely by proof. But, subject to this difficulty, we have come to the conclusion that the answer must be regarded as setting up a good claim for whatever damages were directly occasioned by the plaintiffs’ default in complying with the alleged contract. It is true, that the general rule of damages in actions on contracts for not delivering goods,, where the price has raised, is the difference between the contract price and the market price at the time when they ought to have been delivered. This rests upon the assumption, which is generally true, that the purchaser may, by paying the market price, supply himself, and thus avoid any other damage. But there may be cases, where parties contract for articles with reference to use or sale on some particular occasion, and where, by reason of want of time, or their situation in respect to the market, they would, on a failure to receive them on the contract, be unable to supply themselves for that occasion, in which this general rule of damages would wholly fail to compensate for the actual loss. In such cases, time is of the essence of the contract. It would be like a contract to complete át a given time a ship designed to be employed in a particular trade, or a house to be occupied, or an engine to run a particular mill or manufac-tory. In such cases, where the contracting party is advised of the special purpose of the thing to be completed, and if the damage that would naturally accrue [660] from failure to complete it at the specified time, and in view of this expressly stipulates to furnish it at a given time, there is no reason why he should not be responsible for such damage as is the direct natural result of his failure, even though beyond the mere difference between the contract and market price. Some cases of that character are referred to in the opinion in Shepherd v. The Milwaukee Gas Company, 15 Wis. 318; and the general reasoning of that opinion tends to support the proposition now asserted. The counterclaim stated in the defendant’s proposed answer seems to fall fairly within this principle. It shows a contract by the plaintiffs to furnish the defendant with certain stock and materials to be used in his business, in time for the approaching state fair, and with direct reference to the increased trade and business expected on that occasion. It alleges a failure to comply with the contract — an inability on the defendant’s part to supply himself in Madison, where he was located, and that this was known to the plaintiffs, and that he was damaged and suffered loss in consequence. We shall of course not attempt to anticipate what proof he may offer in support of these allegations, nor to indicate what would be proper or necessary. But upon those facts we think he would be entitled to such damage as he can prove with reasonable certainty to have been the direct natural result of the failure of the plaintiffs to comply with their contract. The court having power to allow the defendant to file an amended answer, and the one proposed setting up a valid counterclaim by way of defense, we think, upon the facts appearing in the affidavits, he ought to have been allowed to file it. He had been guilty of no negligence; for the fact that, while attempting to manage his own case before the justice, he supposed he could prove his defense under a general denial, could hardly be called such. On ascertaining his [661] mistake, he employed counsel and moved promptly before the justice for leave to amend. And whether or not the motion, at that stage of the trial, was properly denied by the justice, when the case was taken by appeal to the circuit court, it would seem an unwarranted exercise of the discretion of that court to refuse leave to put in an answer necessary to a just determination of the controversy between the parties. In passing upon his application, affidavits offered by the other side, tending to disprove the counterclaim, ought not to be considered. Its truth should not be tried on the motion for leave to plead. The judgment must be reversed, and the cause remanded with directions to grant the motion of defendant for leave to file his answer, and for a new trial. By the Court. — Judgment reversed, and cause remanded with the directions above indicated.