Schuenemann v. John G. Wollaeger Co.

Siebecker, J. The appellant contends that the civil court erred in its ruling excluding evidence defendant offered to show as an item of its damage the profits it would have realized liad the plaintiff consummated the purchase of the car as agreed by it and plaintiff in November, 1915. The evidence offered by defendant was for the purpose of [618] showing that it was a duly licensed agent of the Studebaker corporation, which manufactured this car; that this car was similar to the cars of this class then being sold in the Milwaukee market at a uniform price of $905, and the profit defendant would have realized had plaintiff performed his contract of purchase, The trial court held that the-rule of damages applicable to this case, if plaintiff breached this contract, was the difference between the contract price of the car as sold to the plaintiff and the market price of the car at the time when the car should have been accepted by the plaintiff. In'the case of breach of contract for sale of goods it is well established that where the goods are in the seller’s possession he may (1) hold.the property for the vendee and sue him for the purchase price and thus secure the profits of his bargain; or (2) sell the property as agent for the vendee and recover the difference between the contract price and a fair market value upon resale as the liquidated amount of the damage; or (3) keep the goods and recover the difference between the contract price and the fair market value. Haueter v. Marty, 156 Wis. 208, 145 N. W. 775; Berry v. Wadhams Oil Co. 156 Wis. 588, 146 N. W. 783; sub. 3, sec. 1684t—64, Stats, (uniform sales act). It is argued that defendant, under this rule of damage, is not made good the loss of profits it suffered as a result o.f plaintiff’s refusal to perform the contract. It must be borne in mind that the cost of the car to defendant was the same whether it sold it to Dr. McRae or the plaintiff and that the jury allowed defendant the difference between the contract price and the price received from Dr. McRae. Furthermore, if defendant desired to collect the profits on its sale to plaintiff, the law offers the opportunity for it to hold the car for plaintiff and sue him for the purchase price, thus recovering the profits of the bargain. When defendant sold the car to another, as it did, it elected to waive the right to stand on its bargain and accept as the measure of [619] its damage for the breach of contract by plaintiff the difference between the price of the car plaintiff agreed to pay and the price for which the car was sold to Dr. McRae. . We find no error in the record. By the Court. — The judgment is affirmed.