Olson v. City of Viroqua

Cassoday, O. J. The substance of the contract is set forth in the foregoing statement. By that agreement the city was574 “to furnish the casing pipe and material for the pump/’ and to render what assistance was necessary to put in the pipe. The plaintiff was to pnt everything in place ready for pumping and assist in connecting the pump. The work was to be ■commenced as agreed, “and be pushed to completion with all possible dispatch and without any unnecessary delay.” To •complete the work as agreed, it was absolutely essential that ■the two parties should co-operate. It was impossible for the plaintiff to put everything in place ready for pumping and ■assist in connecting the pump so long as the defendant failed to furnish the casing pipe and material for the pump. The ■evidence certainly tends to prove that the defendant failed to so furnish such casing pipe and material for the pump for .several weeks, if not months, after the plaintiff was ready to put the same in the well. If such evidence is true — -and it seems to be undisputed — then there was certainly a breach of the contract on the part of the defendant, which greatly •delayed performance of the contract on the part of the plaintiff. John O’Brien L. Co. v. Wilkinson, 117 Wis. 468, 471, 94 N. W. 337, and cases there cited. That such breach of the contract entitled the plaintiff to substantial damages there •can be no doubt. Wood v. Schettler, 23 Wis. 501; Salvo v. Duncan, 49 Wis. 151, 4 N. W. 1074; Allen v. Murray, 87 Wis. 41, 57 N. W. 979; 3 Suth. Dam. (3d ed.) § 713; Wells v. Nat. L. Asso. 53 L. R. A. 48, note. The measure of such damages must necessarily depend very much upon the evidence. As there must be a new trial and the evidence may be different, we have purposely refrained from considering •such measure of damages. By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for a new trial.