American Foundry & Furnace Co. v. Settergren

Dodge, J. It can hardly be doubted that the defendants,, by promising upon sufficient consideration, namely, the return of their check, to redeliver the property in question, and-by their inconsistent conduct in retaining and using the grates, after notice to them that they could do so only upon payment: of the price of $45, gave to the plaintiff the right to elect to hold them to either of two contracts. By their retention of' the grates after such notification they had doubtless so acted as to give plaintiff a right to insist on an implied contract to-, pay therefor $45 (Wellauer v. Fellows, 48 Wis. 105, 4 N. W. 114); but by previously promising, for a consideration, to return the grates, they had entered into another contract upon-which plaintiff might also rely. If it elected the former, plaintiff could recover only the agreed price of $45. If, however, relying on their promise to return the grates, plaintiff had, within reasonable anticipation of the parties, entered into new engagements with reference thereto, or otherwise-changed its situation, its damages might exceed that sum, and. such damages it would be entitled to recover. It also, in such case, might be able to prove that the price named for such grates was less than their real value, and that the failure to-return -them to it had caused damage to such full value. In.. [341] this situation the plaintiff elected to stand upon the contract to return the goods and to recover its damages instead of the agreed price, and alleged such damages to be $60 and some interest instead of $45 and interest, which must have measured its recovery had it elected otherwise. There is no ambiguity in the grounds on which the plaintiff stands in this action. It is the recovery of the damages suffered by it from breach of the contract to return. Ordinarily, and in the absence of peculiar circumstances, the damages resulting from the’ failure to deliver an article of merchandise is the reasonable market value thereof, upon the assumption that the plaintiff could have supplied himself with the same articles by paying such reasonable market value. Of course, this amount might be enhanced by special circumstances, such as necessity of expense or delay and consequent loss of profit, if such could be proved and were within the reasonable anticipation of the parties. Kelley, M. & Co. v. La Crosse C. Co. 120 Wis. 84, 97 N. W. 674. Had the plaintiff been able to satisfy the jury that the market conditions with reference to these particular articles were such that it could not supply itself with like property for less than $45, or even for less than the $60 claimed, its recovery might have extended to such sum, but it had, of course, opened the door to the defendants to offer proof in negation of any such amount of damages, and, to that end, to call witnesses as to the market value. In other words, plaintiff, in seeking to enhance its recovery above the price which had been agreed upon, opened the door to proof that its damages from nonreturn were really less than that price, as indeed they were if it could have obtained a new supply of such grates without expense or other injury at less than $45. Hence we can see no escape from the conclusion that the evidence as to reasonable value was admissible, nor, since there was conflict of evidence upon the subject, that the verdict of the jury cannot be set aside upon appeal. The overruling of plaintiff’s objection to qualification of [342] defendants’ witnesses to testify as to market values we do not think presents error. Sufficient familiarity in general with the subject of market values of such property was shown to arouse the judicial duty pf the trial court to decide as to such qualification, and we cannot say that his decision is so clearly wrong that it can be held erroneous upon appeal, under the rule so often announced as to the weight to be given to the decision of the trial court as to competency of witnesses or other forms of evidence. Hupfer v. Nat. D. Co. 119 Wis. 417, 427, 96 N. W. 809. By the Court. — Judgment affirmed.