Williston v. Mathews

Mitchell, J. According to the answer, the defendants had contracted to build an ore dock at Agate bay according to certain plans' and specifications, and complete the same by May 1,1892. The timber and lumber required for the work were of peculiar and unusual dimensions. In the prosecution of the work, it was necessary to employ a large crew of men, and in order that the work might progress without delay, and the men be kept employed, it was necessary that certain parts of the timber should be on hand at certain times; and, inasmuch as the dock had to be constructed in and over the water, it was necessary, to an advantageous performance of the work, that it be done while the ice remained on the water. The plaintiffs, with knowledge of all these facts, on January 9,- 425 1892, agreed to furnish to defendants all the lumber and timber for the construction of the dock, in three monthly installments. But they failed to furnish a large part of it, by reason whereof the defendants were put to large expense in going and endeavoring to procure the timber elsewhere, and were also damaged by reason of their workmen being compelled to remain idle, and also by reason of the work being delayed until the ice became rotten and unfit to work on, thereby rendering it necessary for defendant to use boats .and flats, at greatly increased expense. Plaintiffs do not dispute that under this state of facts the special damages pleaded would be recoverable, as being fairly within the •contemplation of the parties as the probable consequence of a breach of the contract, unless the parties have expressly stipulated for some other measure of damages. As such a stipulation, they rely on the provision in the contract that “in the event of our [plaintiffs’] inability to furnish all or any part of said timber as proposed above, we agree to allow said Mathews & Krech to purchase the same in open market, and to charge the necessary expense to our account, the same as if we ourselves had purchased , said timber.” It is claimed that this language is restrictive, and limits the damages, in case of a breach of the contract, to the difference between the contract price and what defendants might have to pay for the timber in the market. We do not think that it can be held that the parties intended this provision to go to that length. We recognize the right of parties, if they see fit, to stipulate for a different measure ■of damages for the breach of a contract from that which the law would give. We also recognize the difference between contracts where the law furnishes a definite and fixed standard for measuring damages for their breach, and those of such a character that the •damages which must result from a breach are uncertain in their mature, and not susceptible of proof by any fixed pecuniary standard; and we áre aware that stipulations for a liquidation of damages ■should receive more favorable consideration in the latter class of ■cases than in the former. But, even in the latter, we think that, before a provision in the contract can be given the effect of a stipulation fixing a measure of damages either greater or less than the law would give, it must fairly appear from its language, construed In the light of the nature of the contract and the situation of the 426 parties, that they intended it to have that effect. No such result should be arrived at by mere doubtful inference. While, independently of any express provision to that effect, it would have been the right, as well as duty, of defendants, in case of plaintiffs’ default,, to procure the timber elsewhere, if obtainable in the market, yet, as laymen, the parties may not have understood this, and might well have inserted this provision in their contract from abundant caution, without having in mind, or at all intending, that it would or should operate as a stipulation for an exclusive measure of damages in case of a breach of the contract. (Opinion published 56 N. W. Rep. 1112.) We do not think the case is one for the application of the maxim that the expression of one thing is the exclusion off another. That' maxim is not of universal application, but depends upon the intention of the parties, as discoverable upon the face of the instrument or of the transaction. Order affirmed.