Page Woven Wire Fence Co. v. Staudenmayer

Rosenberry, J. Ten assignments of error are made in relation to the admission and rejection of testimony for. or against the plaintiff. Most of these objections become immaterial and are disposed of by the disposition of the major questions raised upon the record. At the close of the testimony E. R. Staudenmayer asked leave to amend his answer, setting up a counterclaim for damages for delay in shipment of the goods and for breach of contract on the part of the plaintiff for failure to ship in accordance with the terms of the contract. This is assigned as error. It was not shown that E. R. Staudenmayer suffered any damages by reason [158] of the delay in shipment. The measure of damages in a case of the failure of the seller, to deliver the goods at the time specified in the contract is the difference between the contract price and the market price of the goods at the time and place when and where the contract is breached. Cockburn v. Ashland L. Co. 54 Wis. 619, 12 N. W. 49; Foss v. Heineman, 144 Wis. 146, 128 N. W. 881; Guetzkow Bros. Co. v. A. H. Andrews & Co. 92 Wis. 214, 66 N. W. 119. There was no evidence in the case showing that in this respect E. R. Staudenmayer had suffered any damages whatsoever. George Staudenmayer made no claim against E. R. Stauden-mayer for special damages growing out of their relationship. The allegations made in the answer of George Staudenmayer did not permit of such a claim on his paid against -E. R. Staudenmayer, who, according to the theory adopted in the answer, merely acted as the agent of George Staudenmayer. Therefore the trial court was right in refusing to permit the amendment to the answer of the defendant E. R. Staudenmayer. It appears from the pleadings that the defendants-rested their case upon the allegation that the contract for the sale and delivery of the goods was a contract between George Staudenmayer and the plaintiff, and chose to stand or fall by that allegation. The undisputed facts show, as stated, that the order for the goods was made and signed by E. R. Staudenmayer and that by the terms of the order, the goods were to be charged to E. R. Staudenmayer. The acceptance of this order by the plaintiff made a contract between E. R. Staudenmayer and the plaintiff and not between the plaintiff and George Staudenmayer. Most of the assignments of error as to the admission or. rejection of testimony relate to evidence which was offered to show that prior to this time there had been an established course of dealing between the parties and that, as a matter of fact, the plaintiff knew and understood that the order was made by George Stauden-mayer through E. R. Staudenmayer. An allegation of that [159] kind involved a contradiction of the written order, and no principle of law is more elementary or better established than that a written contract may not be contradicted by oral evidence in the absence of an allegation of mistake or fraud. The defendant E. R. Staudenmayer sought no reformation of the contract, made no allegation of mistake upon his part, and there is no evidence in the record which would support a finding of mutual mistake. Whether or not there was a contract between George Staudenmayer and the plaintiff, it is too plain to require argument that the writings upon their face made a contract between the plaintiff and E. R. Staudenmayer, and the trial court correctly so held. If the defendants desire to defend upon the ground that the contract was in fact made with George Staudenmayer, they should have interposed an equitable counterclaim and asked that the contract be reformed on the ground of mutual mistake. That would have presented an equitable issue triable by the court. Instead the defendants chose to proceed to trial before a jury upon a contested question of fact, and the undisputed written evidence shows that the contract as made was a contract between the plaintiff and E,. R. Staudenmayer and not a contract between plaintiff and George Staudenmayer. In order to sustain the claim of the defendants that they were entitled to recover special damages, evidence should have been offered showing that at the time of the inception of the contract both the plaintiff and defendants had knowledge of the circumstances and conditions by reason of which it would be in contemplation of both parties that a breach of the contract by the plaintiff would result in special damages. Evidence of that sort was not forthcoming. Upon the pleadings and the undisputed evidence the trial court correctly held that the defendant E. R. Staudenmayer was liable to the plaintiff for the value of the goods delivered. By the Court. — Judgment affirmed.