Baldwin v. Blanchard

Kipley, Ch. J. By the Court Plaintiffs declared on defendant’s breach of contract in not cutting their wheat at the time agreed, whereby it became over-ripe, and part was lost by shelling in handling, and exposure while standing to violent storms of wind and rain.' — 496 — Issue was joined on the alleged contract, and breach, and plaintiffs’ alleged loss, the answer averring also, that if plaintiffs had sustained any damage in the premises, it wholly resulted from their own ac.ts, and neglect, and the unfavorable state of the weather, while their wheat was harvesting. The case was tried by a jury who returned a verdict for the plaintiffs, and assessed their damages at four hundred dollars and ninety-five cents. The alleged contract was the agreement of defendant to cut plaintiffs’ wheat, so soon as he should have reaped a certain forty acre tract of his own, and the breach, that ho did not begin to do so, till more than two weeks thereafter. Plaintiffs called a witness who testified, that while he was working for defendant, but when, or where, he could not state, except that it -yas on defendant’s farm, and before defendant had finished said forty acre tract, he heard him say, that when he got said tract done, he was going over to plaintiffs’1 to cut their grain. After this testimony had been given, defendant objected to any statement of defendant’s as to cutting plaintiffs’ wheat, not made in plaintiffs’ presence, which was overruled, and the evidence received, and defendant excepted. The ground of objection specified was obviously untenable. The defendant, at the argument, makes the further point, that what he intended to do, is not evidence of what he had agreed to do, that the evidence was therefore not relevant, while it had, as he alleges, a tendency to mislead the jury. This however is not open to him in this court. The testimony having been given without objection, he should have specified all the grounds upon which he desired it to be excluded, or they will be taken to have been waived. Moreover,.the fair inference from this evidence, would seem rather to be, that there was some existing contract — 497 — between the parties for the cutting plaintiffs’ wheat so soon as defendant had finished reaping said forty acre tract. If not, the intended cutting would have been trespass. Viewed in this light, we could not say that the testimony was not relevant to the issue. A question to one of the plaintiffs: “ State whether at that time, i. <?., the day that defendant finished reaping the 40 acre tract, you had made any contract to cut your grain with any other person?” was objected to as immaterial. The objection was ovex’ruled and defendant excepted. If it were immaterial, yet, as it is not pei'ceived, nor is it contended, that the defendant could have been in any way prejudiced by the answer, (which was in the negative) it is no ground for a new trial; Cole vs. Maxfield, 13 Minn., 235. The witness was asked, “What if anything did that grain yield less in quantity, than it would have yielded, if defendant had cut it when he agreed to ?” Defendant objected on the gx’ound, that the damage sought to be proved was too remote and uncertain, and not such as might reasonably be presumed to have been contemplated by the parties at the time they made the contract in question, as a result of the breach coxnplained of. The objection was overruled and defendant excepted. Por his alleged breach of conti’act aforesaid, in not cutting their wheat, plaintiffs could recover those damages of which it was the proximate cause, i.< e. such as may be supposed to have been contemplated by the parties. As the question goes to the whole loss in yield occasioned by the delay, the objection assumes that no such loss could be reasonably contemplated by the parties as the result of such delay. This is an unreasonable assumption. The evidence tends to prove that plaintiffs’ wheat was fully ripe when defendant had finished cutting the 40 acre tract, and that defendant knew that it would be, when he made the contract. — 498 — With favorable weather, and careful handling, some loss in yield must, nevertheless, inevitably result from allowing grain to stand for more than two weeks, after it is fully ripe. The parties in making the contract must, therefore, in all reason, be supposed to have contemplated some loss in yield, as the result of such a breach, and there being no presumption that the weather was less favorable than usual at that season, and no such evidence, as the case then stood, the presumption being, moreover, in the absence of all evidence to the contrary, that due care was used in harvesting the crop, the parties must jprima facie, be reasonably supposed to have contemplated tho whole loss in yield. If, in fact, it were partly due to something which they could not reasonably have been expected to have foreseen, e. g., a hurricane, that would be for the defendant to show. The objection was therefore, rightly overruled, and this disposes also of the stipulation of the parties at the trial, that all evidence of damage done to plaintiffs’ crop from its not having been harvested in due season, should be received subject to the objection, that such damages were remote, and consequential, and not such as might reasonably be supposed to have been contemplated by the parties, as a result of the breach of the contract, at the time they made it. The case finds, that the court charged the jury, among other things, ‘‘that if they found that the defendant made the contract alleged in the complaint, and failed to fulfill it, as therein alleged, and that the plaintiffs used reasonable diligence to secure their crop of wheat, and to prevent loss, after the defendant had failed to perform his contract, and which the defendant by such contract had agreed to harvest, the defendant would be liable for all damages sustained by the plaintiffs in consequence of the defendant’s neglect to fulfill or perform said agreement, whether such damage was — 499 — caused by the wheat becoming overripe, and shelling by handling, or whether the same was destroyed by a storm, which occurred after the defendant had agreed to harvest the grain, and after he had had reasonable and sufficient time to harvest and secure it, as he agreed toto which the defendant.then and there duly excepted. No question is, or could be seriously made, as to the correctness of the statement, that plaintiffs could recover the loss by the wheat becoming overripe and shelling by handling. Objection is taken to the statement respecting the loss by storm. The instruction contains more than one distinct proposition of law, only one of which is claimed to be erroneous. The general exception taken does not, therefore, present any question for review on appeal. It did not call the attention of the court to that which was deemed erroneous. “ It did not suggest to the judge’s mind, what the counsel excepting would have him hold, or wherein he was wrong. It has been held in many cases, that the party complaining of the charge of a judge, must put his finger on the point of which he complains. If he does not, no court of review can regard it.” 2 Seld. 233. 5 Denio 213. See also State vs. Staley, 14 Minn. 105, and cases cited. The case stands, therefore, as if no exception had been taken. Apart from this, however, we do not think that the part of .the charge complained of is obnoxious to the objection made, viz: that it ignores all distinction between ordinary, and extraordinary storms. The language of the court is to be understood in the sense in which it was used, i. e. with reference to facts and circumstances as they exist. What Lord Campbell says in Smear vs. Ford, 102, Eng. Com. Law, 612: “ that in so — 500 — variable a climate as that of England, the parties must have foreseen that damage would result. to the wheat from the weather, if it were not threshed by the time fixed,” is equally true of this case. Our climate is variable. High winds are frequent, especially in the hot season, when also, storms are then not only not unusual, but come up very suddenly, and whether of wind only, or wind and rain, are apt to be very violent, though they do not usually last long. The parties must therefore have contemplated that damage to the crop from such causes, would in all probability be the result of such delay. It is such weather, and the damage resulting therefrom, that the court must be taken to have intended, and not a storm so extraordinary and unusual for the country and season, as would correspond to the “extraordinary hail storm” of- Mr. Sedgwick, the loss by which would be too remote. Sedg. Dam. Ch. 3, p. 63. The defendant contends that the case shows that the damage was partly the result of such an extraordinary violent wind or storm, that falls within the above definition. The plaintiffs on the other hand, insist, that the wind in question was not of unusual severity, or such as the parties might not reasonably expect to occur in the usual-course of things. ¥e are inclined to agree with them, but however that may have been, the defendant, if he apprehended any danger from the generality of the language of the instruction, should have directed the attention of the court to it, by requesting specific instructions. Chamberlain vs. Porter, 9 Minn. 260; Parsons vs. Browne, 15 Barb. 590. Judgment affirmed.