Shores Lumber Co. v. Starke

Bardeen, J. There having been no motion for a new trial, this court cannot properly review the evidence to determine whether it does or does not support the verdict. “ The verdict must be taken as sustained by the evidence, and the only questions to be inquired into upon an appeal from tke judgment are the errors, if any, arising upon the trial in the admission or rejection of evidence, in the instruction of the court to the jury, or otherwise in the conduct of the [502] trial.” Anstedt v. Bentley, 61 Wis. 629; Reed v. Madison, 85 Wis. 667. For this reason, as to such alleged errors as require an examination of the evidence, beyond the rules above stated, the defendants must be deemed to be foreclosed. It is claimed that the court ought to have compelled the plaintiff to elect upon which cause of action stated in the complaint it would stand. This objection presupposes that two causes of action are therein stated. This is not so. Only one cause of action is stated, and that is for damages for breach of the charter contract. The complaint does, however, state two theories as to the measure of damages, depending upon how the jury shall find the facts. My personal opinion is that these two theories are inconsistent, but the majority of the court think otherwise, and the case must be disposed of in deference to that ruling. The court allowed testimony to be offered, and required the jury to find, upon both theories, and, upon the application for judgment, denied relief as to the one. One theory was based upon rise in freight rates, and the other upon depreciation in price of lumber, etc. The jury found on both, but the court ruled that the plaintiff was only entitled to relief upon the latter. This ruling is held to be proper, in view of the facts found in the special verdict. It is further urged that the court erred in denying defendants’ motion for a nonsuit. A sufficient answer to this contention is that a breach of the charter contract was admitted, and on any theory of the case it should have been submitted to the jury. But it is said that the plaintiff has not submitted any proof as to the proper measure of damages, and therefore the court should have given judgment for defendants, deducting only nominal damages for plaintiff from the amount found due on the counterclaim. The damage allowed was the difference in the market price of the lumber at Chicago during the time lumber ought to have been carried under the contract, and the price when it could be [503] carried and sold the following season; also the cost of insurance, and the value of the use of the proceeds of the lumber that could have been carried, from the close of navigation in 1892 until it could be carried and marketed in 1893. Under the contract in suit, when it became evident that Starke was not going to get his vessel around in season to carry the lumber, it was plainly plaintiff’s duty to use reasonable diligence to secure other carriers, and thus prevent loss. Bradley v. Denton, 3 Wis. 557; Poposkey v. Munkwitz, 68 Wis. 322. The jury found that plaintiff used reasonable efforts in that respect, and the evidence shows that other vessels could not be secured. If the plaintiff had secured other barges, and had been compelled to pay increased freight rates, then the true measure of damages would have been the difference between the contract price and the price the company was obliged to pay. The Oregon, 6 U. S. App. 581, 55 Fed. Rep. 666. It must be accepted as a verity that plaintiff could not secure other vessels to transport the lumber, and hence the rule of damages above stated does not apply. There were no other means of shipment, except by rail, and whether it would have been feasible to adopt this means of transportation does not appear in the case. In Ward's C. & P. L. Co. v. Elkins, 34 Mich. 440, there was a failure by defendant to carry some cargoes of salt. Plaintiff was unable to secure other lake transportation, because of the close of navigation, lie then shipped it by rail, in small lots, and sought to charge the defendant with the difference in rates. Recovery was denied because the means adopted to carry the salt were unreasonably expensive and excessive, and it was held that the measure of damages was the difference between the market value of the salt at Chicago and Bay City, less the amount of freight fixed by the contract. Bracket v. McNair, 14 Johns. 170; O’Conner v. Forster, 10 Watts, 418, and many if not all of the cases cited by de [504] fendants to sustain the measure of damages aboye stated, are cases where the shipper had not attempted to secure other means of transportation, and where the commodity in question had a market value, both at the point of shipment and at the port of destination, at the time of the breach. This might afford an easy and ready means of ascertaining the exact injury sustained. But here the circumstances are quite different. The testimony is undisputed that Starke was urged to hurry with his boat, and, if his boat was not ready, to send other vessels; that they were short in shipments, and must have more boats. It is also in proof that there was a lively demand for this kind of lumber in Chicago, on account of the "World’s Fair, and that a great amount of building was being done. It is also undisputed that the lumber had no market price at Ashland, and could 'not be sold, although efforts were made to sell it there during the summer and winter. The lumber was detained there over the winter by Starke’s default, and was marketed the following spring at a reduced price. Because the lumber had no market value in Ashland, it is evident that the rule laid down by the authorities noted can have no application. This court is of the opinion that the rule adopted by the trial court is the proper rule applicable to such a situation. The lumber was taken to market with all convenient speed, and sold. Upon such sale the plaintiff realized a less price than it would have realized had Starke carried the lumber as agreed. It was deprived of the use of the proceeds for some time, and was put to expense for insurance in the meantime. These are elements of damage flowing directly from Starke’s breach of duty, and may reasonably be said to have been within the contemplation of the parties. They are not in the nature of special damages, to recover which notice to the contracting party must be shown. It affirmatively appearing that plaintiff used reasonable diligence to secure other means of transportation, and was [505] unable to do so; that tbe lumber bad no market price in Ashland, and could not be sold there; that tbe plaintiff transported tbe same to market at as early a date as possible., and was compelled to sell at a less price than tbe market price when tbe same should have been delivered,— we see-no reason why it may not recover tbe damages resulting directly and prosimately from the breach of tbe contract. Such were tbe damages allowed, and any other rule would have worked an injustice that cannot be tolerated. Tbe fourth instruction requested by defendants and refused by tbe court bad no application to tbe case presented, Tbe plaintiff did not claim that it bad secured other vessels-to carry tbe lumber Starke’s boat was to carry, and therefore an instruction based upon any such supposition was beyond tbe issues and wholly inapplicable. By the Court.— The judgment of tbe circuit court is affirmed.