Corbett v. Anderson

The following opinion was filed March 21, 1893: Cassoday, J. By the terms of the original contract the plaintiff was to begin hauling the logs January 4,1892; and after January 10, 1892, he was required to haul at a specified rate or forfeit all rights under the contract. He appears to have commenced on time, with the requisite teams, men, and outfits; but the road upon which to haul the logs had not been furnished by the defendants as agreed upon. This operated to delay performance by the plaintiff in what is generally the best portion of the logging season. Of course the plaintiff’s expenses continued whether his men and teams were idle or at work. It would seem that about January 19, 1892, the defendants induced the plaintiff to consent to their constructing a new road, and abandoned the purpose of completing the old one as they had agreed. The jury found, in effect, that the defendants-did not provide such a new road with reasonable diligence; that up to the time the plaintiff quit the job, January 27, 1892, they had not furnished such new road as the}7 had agreed, and hence the plaintiff, contrary to his desires, was forced to quit the job. Obviously, a man might be willing to enter upon the hauling of four or five million feet of logs early in January, when he would be entirely unwilling, if precluded from doing so until the 1st of February or later. It is conceded that the plaintiff was justified in suspending work upon the job by reason of the failure to furnish the road as agreed; but it is contended that after the plaintiff commenced hauling upon the new road, though incomplete, he had no right to abandon the contract so long as the de-' [224] fendants were ready and willing to continue work thereon until it should be completed according to the contract. There had already been a delay of twenty-three days in the completion of the road. It does not appear how much more delay would have been necessary for such completion. The jury found that it would have cost $500 to complete the road so as to have satisfied the contract. The completion of the road by the defendants according to the contract was a condition precedent to performance on the part of the plaintiff. Such completion, even under the contract as modified, was necessarily to be in time to enable the plaintiff to perform his part of the contract during the logging season. A very large portion of the season had passed before the plaintiff quit the job. The mere fact that the plaintiff used the road for a short time while it was so incomplete, did not preclude him from insisting upon such completion as a condition precedent to performance on his part. Under the repeated adjudications of this court, we are constrained to hold that the plaintiff was justified m quitting the job, and that he is entitled to recover, as damages, at least the amounts of the profits which he would have realized had he not been precluded from performing the contract in the manner indicated. Salvo v. Duncan, 49 Wis. 151; Nash v. Hoxie, 59 Wis. 384; Jones v. Foster, 67 Wis. 297; Cameron v. White, 74 Wis. 425. It sufficiently appears from the verdict that such profits would have been fifteen cents per 1,000 feet for 3,600,000 feet, making $540. Deducting from this the $39.30 which the defendants paid in excess of the amount which the logs actually hauled caine to, and it leaves a balance of $500.70. For substantially that amount the plaintiff moved the trial court for judgment upon the special verdict. We think this motion should have been granted. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with direction to enter [225] judgment on the special verdict in favor of the plaintiff and against the defendants for the amount of the last-mentioned sum and interest thereon from the date of the verdict, as damages, and costs to be taxed. A motion for a rehearing was denied May 23, 1893.