Larson v. Cook

WiNsnow, J. We entirely agree with the conclusion of the circuit judge that L.. O. Larson acquired rights under this contract which he could enforce by action. It is settled in this state that “ when one person, for a valuable consideration, engages with anqther (whether by simple contract or by covenant under seal) to dp some act for the benefit of a third person, the latter may maintain an ae [568] tion against the promisor for breach of the engagement.” Grant v. Diebold S. & L. Co. 77 Wis. 72, and cases there cited. In the present case Cooh and Huntington contracted nominally with Gribben for the benefit of Larson. True, Gribben had an incidental interest in the contract to the extent of his advances, but no further. The' contract was made and understood by all parties to be made for the primary benefit of Larson, and the fact of Gribb'en’s interest by way of security only can make no difference. Under the rule above quoted there can be no doubt of Larson’s right to maintain an action for breach of this contract. We also fully agree-with the circuit judge in his construction of that clause of the contract providing for removal of the timber. The clause under consideration is: “ Said timber to be removed in the years 1882 and 1883; more time to be allowed in removing timber, if more time is allowed Cooh and Huntington.” Plainly, this is not a provision for the benefit of Cooh and Huntington. It could make little, if any, difference to them when the timber was removed, because they did not own the real estate. Whether the timber was ever removed, so long as they received their pay therefor, would seem tó be a matter of no moment to them. On the contrary, it obviously was a matter of great importance to Gribben and Larson that they should have a sufficient time to remove the timber which they had bought, and that they should know positively what time they were to have; and the last clause, providing for the. allowance of more time, is entirely conclusive to our minds that, by the previous clause, Cooh and Huntington are allowing time to Gribben and Larson. Indeed, it is difficult to see how the whole clause can be construed in any reasonable way, except as an express agreement by Cooh and Huntington that Gribben and Larson are to have the whole of the years 1882 and 1883' within which to remove the timber; and we so construe it. [569] This agreement having been confessedly broken, no further question remains, except the question of the measure of damages. A contract for the sale of standing timber is a contract for the sale of an interest in lands. Lillie v. Dunbar, 62 Wis. 198. Title to a part of the lands failed. The rule of damages laid down in Semple v. Whorton, 68 Wis. 626, applies. Under that rule the damages are such fractional part of the whole consideration paid as the value, at the time of the purchase, of the part to which the title fails bears to the value of the whole piece purchased, and interest during the time plaintiff has been deprived of the use of the fractional part, not exceeding six years. To state it under the form of the rule of three, the proposition is: The value of the whole at the time of the purchase is to the value at the same time of the part to w'hich title fails as the whole consideration is to X, or the damages. It is plain that in order to find the unknown element in the problem, i. e. the amount of the damages, we must know from the evidence the other three elements of the problem. Here is the difficulty. The evidence fails to show the value at the time of the purchase of the part to which title failed, and there is no evidence of the value of the whole at the time of the purchase, save the fact that $2,000 was paid for it. Granting that this may be sufficient, prima facie, in the absence of other evidence, to warrant a finding that the value of the whole was $2,000, we are still entirely without the means of determining the value of the part to which title failed at the time of the purchase. There must be further proof before an assessment of damages can be made in accordance with the rule settled in this court. No new trial upon the merits will be necessary, but further evidence upon the question of damages, in accordance with the rule laid down, must be taken, and for this purpose a reversal is necessary. By the Court.— Judgment reversed, and cause remanded for further proceedings in accordance with the opinion.