Salvo v. Duncan

Cole, J. There can be no doubt that the learned circuit court placed the right construction upon the contract offered in evidence, and that it was the plain duty of the defendants to furnish the plaintiff all necessary supplies for men and teams as fast as needed for the vigorous prosecution of the work. This is the clear meaning of the contract, and the parties seem to have so understood it. The questions litigated on the trial were, whether the defendants had substantially fulfilled the contract on their part, or whether, in consequence of their failure to furnish the necessary supplies, the plaintiff was prevented from performing the contract on his part. [155] On these issues the jury found in favor of the plaintiff, and it is undeniable that there is abundant testimony to sustain such a conclusion. If, then, the plaintiff was guilty of no default, but would have performed had the defendants kept the contract on their part, what was* the proper measure of damages? The plaintiff really only delivered less than one-half of the logs which he undertook to put in. The court charged, in substance, that if he was prevented from, fulfilling his contract by the default of the defendants, he was entitled to recover, first, the contract price for the logs actually cut and delivered on the contract; second, the extra expense of delivering those logs by reason of defendants’ failure to furnish supplies beyond the contract price, if supplies had been furnished according to the contract; and third, the difference between the contract price and the actual cost to him of putting in the logs not delivered. When considered with reference to the facts of this case, we can see no valid objection to this rule of damages. It will, of course, be conceded, if the plaintiff was prevented through the fault of the defendants from fully performing the contract, that he was entitled to recover the contract price for the logs which he did actually deliver. On the same hypothesis, it seems to us, it cannot be denied that he was also entitled to recover the profits which he would have realized by delivering all of the logs according to the contract. In other words, he might recover the difference between the contract price and what it would have cost him to put in the remainder of the logs. Wood v. Schettler, 23 Wis., 501. But the learned counsel for the defendants insists that the other item of damages, namely, the extra expense which he was put to on the logs delivered in consequence of the failure of the defendants to furnish supplies, cannot be recovered, though the increased expense was caused by the default of the defendants. We cannot agree with counsel in this view of the law. It seems to us that the increased ex [156] pense or loss which the plaintiff sustained by reason of the failure of the defendants to furnish the necessary and proper supplies, constitutes a legitimate ground of damage. The plaintiff, with his men and teams, went into the woods, several miles distant from the market, where no provisions for either animals or men could be obtained, relying upon getting his supplies from the defendants; but, in consequence of their failure to furnish them, both men and teams had to lie idle considerable time, and when they did work labored at a disadvantage. Now, why should not the defendants be held responsible for this loss which the plaintiff sustained because bis men and teams had nothing to eat and therefore cbuld not work? This loss was the direct and necessary result of the breach of contract upon their part. Why should they not make the plaintiff whole for it? When parties make a contract, which one of them breaks or neglects to keep, the law says that the delinquent party must recompense the other for all tlie natural and direct damage which results from such breach. Now the defendants must have known all about the loss and inconvenience which they would subject the plaintiff to by failing to furnish supplies as they agreed to do. We see no hardship in requiring them to make this loss good, and wo believe sound legal principles impose that liability upon them. The plaintiff’s ability to perform was dependent upon obtaining supplies; and, if he was put to extra expense in getting out the logs which lie did deliver, because the defendants kept back such supplies, why should they not make good this loss? It seems to us they were bound in law and justice to do so. It is said that the plaintiff was not entitled to recover anything, because the evidence shows that with the force he had employed it was impossible for him to have gotten out the 2,000,000 feet within the time, even if he had been abundantly supplied. But the obvious answer to this objection is, that there was nothing to prevent him from employing more men [157] and teams, if necessary, to fulfill his contract, and presumably he would have done so. Manifestly it would have been unwise for him to have increased his force so long as he was unable to obtain supplies for the men and teams he had. One or two exceptions to the admission of certain testimony remain to be noticed. The plaintiff was asked, while testifying in his own behalf, as to the cost of putting in the logs he did deliver, and what it would have cost him had he been well supplied. We can see no objection to .such questions, if the extra expense was a proper subject of damages, as we have held it to be. In no other way was it possible to ascertain his damage on this head. Again, the witness Oliver was asked whether he thought the men and teams employed by the plaintiff would have been able to put in 25,000 or 30,000 feet per day all the time, if they had been well supplied, as they ought to have been. It is said that this was substituting the opinion of the witness for facts, or allowing him to swear to conclusions which the jury would draw. The witness was employed by plaintiff in getting out the logs, and said that he had been engaged in lumbering fourteen or fifteen years, doing “ almost all kinds of work.” The testimony was in the nature of expert testimony, and we think he might state whether the plaintiff, with the force he had, could continue to put in the quantity of logs which he says they did put in some days. Unless the jury were experienced in that kind of business, they would want some light on the subject, and to guide their judgment as to what the plaintiff could do. At all events, the evidence was not very material, because, as we have said, the plaintiff might have increased his force if lie found that he could not perform his contract with the force he had. "We do not think there was any error committed on the trial which would warrant a reversal of the judgment. By the Court. — The judgment of the circuit court is affirmed.