Romey v. Rock County Sugar Co.

Win snow, C. J. The case is. simple. The title to the beets was in the defendant. The plaintiff cultivated and harvested them properly and would have delivered them had the defendant been able to obtain cars to transport them. While waiting for cars the beets were lying in small piles in the field and were frozen. This was not the plaintiff’s fault. It seems also that freezing does not materially harm them if they are not allowed to thaw out. While in this condition, the parties agreed that plaintiff should pile them in two large piles' and cover them, at the price of forty cents -p.er ton. This was called pitting them. The reason for covering was that they might remain frozen. This was a perfectly valid contract. If it was faithfully performed by the plaintiff'he would necessarily be entitled to recover the contract price of the beets, as well as the contract price for pitting, regardless of the question whether the beets spoiled as a result of a sudden change of weather. If not carried out, however, i. e. if the piles were 'not covered as agreed and the beets thawed out by reason of the failure to cover, it is plain that plaintiff should not recover either for the beets or for pitting them. Here arises the difficulty in the case. The court found that the plaintiff covered the beets. Examination of the record shows that there is no evidence sustaining this finding, hence it drops out, and the situation is'that the plaintiff piled up or “pitted” the beets only and that the change in temperature caused them to thaw and spoil. Defendant claims that the spoiling was caused by the failure to cover; plaintiff by his brief claims that covering would have done no good but would have made them spoil faster. We do not feel that the 555 ■evidence is clear enough either way to justify us in deciding this question on the present record. We think the case should be remitted to the trial court to determine two questions, viz.: (1) whether the plaintiff in fact fulfilled his contract by covering the piles of beets; (2) if not, whether the beets spoiled by reason of the failure. If the first question be answered in the affirmative, judgment for the plaintiff will necessarily .follow. If, however, it be answered in the negative, and only in that event, it will be necessary to answer the second question. If this be answered in the affirmative, then there can be no recovery by the plaintiff; if in the negative, he should, recover the price of the beets, but not the price of pitting them. The findings already made up to the finding that the plaintiff covered the beets are not disturbed and are not to be again tried. Only the questions indicated in this opinion are to be reopened, and upon those questions the trial court may consider not only the evidence, already taken, but any further material and relevant evidence which the parties may produce. By the Court. — Judgment reversed, and action remanded for further .proceedings in accordance with the opinion.