Hewitt v. John Week Lumber Co.

Taylor, J. The exception taken by the defendant that the court erred in not allowing him interest on his damages from the time fixed for the performance of this contract by the plaintiff, according to the terms of the contract, or, in lien thereof, applying the amount of his damages to the ex-tinguishment of so much of the plaintiff’s claim against the defendant as of the date of his claim, we do not think is well taken. The plaintiff’s claim for damages arose out of a contract separate and distinct from the contract upon which the defendant seeks to recover. It is said it is unjust to permit the plaintiff to lay by for years upon his claim, and then be permitted to recover interest upon his damages from the time the same accrued until the judgment, and at the same time refuse to permit the defendant to recover interest on his damages which accrued at the same time plaintiff’s accrued; but the difficulty with the defendant’s claim is that the nature of his damages were such as were not ascertained and could not be ascertained Avith certainty until the verdict of the jury in the case, while the plaintiff’s damages were ascertainable and susceptible of liquidation without the intervention of a court or jury. The fact that defendant’s claim is ascertained by way of counterclaim in an action against him by the plaintiff cannot change the rule ■ as to allowing interest. A counterclaim is an action by the defendant against the plaintiff, and his rights are to be determined as though he was pursuing the plaintiff in a separate and independent action. It would hardly be claimed that, if this action had been entirely disconnected with the action of the plaintiff against the defendant, the defendant would have been entitled to recover more interest than he recovered by the judgment in this case. It is not a case similar to the case referred to (McMahon v. N. Y. & E. R. Co. 20 N. Y. 463), where the court held that the plaintiff ought to recover interest on an unliquidated claim, because the defendant had himself pre [555] vented the plaintiff from liquidating the same by not causing certain measurements to he made which he had agreed to make, and which when made would have liquidated and ascertained the amount of the plaintiff’s claim. In this case the defendant could have caused his claim to.be liquidated by bringing an action at any time after his cause of action arose; and, under the rule adopted in this case by the trial court, he would then have been entitled to recover interest from the commencement of his action. His delay in bringing his action cannot be charged to the account of the plaintiff. Under the rule laid down by this court in Marsh v. Fraser, 37 Wis. 149; Tucker v. Grover, 60 Wis. 240; Yates v. Shepardson, 39 Wis. 173; Shipman v. State, 44 Wis. 458; Tyson v. Milwaukee, 50 Wis. 90,— the defendant was allowed all the interest he was entitled to. The objection made by the defendant that the court erred in not allowing him forty-one cents per thousand as an item and part of his damages arising out of the refusal of the plaintiff to perform the contract on his part, is, we think, well taken. The jury expressly found that it “ was a general custom in the saw-mills on the Wisconsin river, on September 29, 1886, and for many years prior thereto, that the manufacturer kept the slabs made therefrom (that is, from the logs manufactured), unless otherwise specially agreed upon; ” and they also found the value of such slabs to the defendant under this contract to be the sum of forty-one cents per thousand. These findings must, in the absence of any bill of exceptions in the case, be held to have been supported by the evidence. It is urged on the part of the plaintiff that, because the counterclaim of the defendant did not set out such custom, he should not have been permitted to prove the same on the trial; and if the court on the trial admitted such proofs, ho might, after the verdict was taken, reject the finding, because founded upon evidence improperly admitted. In the [556] absence of anything in the record showing the contrary, we think this court must hold that this evidence of custom was properly admitted, or, at all events, admitted without objection on the part of the plaintiff, and so properly submitted to the jury. Rut, in addition to this, the custom found by the jury is a general custom, within the meaning of the law, and therefore may be proved without alleging it. The custom was, we think, a proper and lawful custom and one which would be likely to be adopted by parties dealing in the furnishing of logs by one party and the manufacture of them by another party, for the reason that the slabs would be of considerable value to the mill-owner, and of little or no value to the man furnishing the logs, if required to remove them from the mill. It certainly is not an unlawful custom. Row the object of proving a general custom is not to contradict or change the contract made between the parties, but to interpret it to the court and jury as it was understood by the parties at the time it was made; and this evidence of a general custom, when it does not contradict or change the express terms of the written contract, is admitted for the purpose of showing what the real contract between the parties was. The proof of such custom is always admitted without pleading it. Power v. Kane, 5 Wis. 265, 268; Hall v. Storrs, 7 Wis. 253; Lamb v. Klaus, 30 Wis. 96; Lee v. Merrick, 8 Wis. 229; Marshall v. Am. Exp. Co. 7 Wis. 1; Keogh v. Daniell, 12 Wis. 163; Huebschmann v. McHenry, 29 Wis. 655; Hinton v. Locke, 5 Hill, 437; Scott v. Whitney, 41 Wis. 504, 507. And, when it is clearly proven, the parties are supposed to have contracted with reference to such custom, unless such custom changes the express terms of the written contract. See cases cited above. Under the findings of the special verdict, the forty-one cents per thousand, the value of the slabs, was as much a part of the defendant’s damages as was the difference be [557] tween tbe contract price for tbe sawing and tbe actual cost of performing tbe work, and should bave been allowed by tbe court and deducted from tbe sum found due to tbe plaintiff. By the Court.— Tbe judgment of tbe circuit court is reversed, and tbe cause is remanded witb direction to enter judgment upon tbe special verdict in accordance witb this opinion.