Malueg v. Hatten Lumber Co.

Mabshall, J.

This case is ruled by a few familiar legal-principles.

Keeping in mind the conceded fact that respondents-hreached the contract in question by neglecting to deliver -to-appellant all the saw timber standing upon the land manufactured into sawlogs, properly scaled, by the close of the-logging season of 1906, the first principle to he mentioned is that a person, at law, may of right breach his contract with another and subject himself to the burden of such damages-for the benefit o£ such other as may he necessary to remedy the breach. Ward v. Am. H. F. Co. 119 Wis. 12 , 96 N. W. 388 .

It follows that, after the breach in question, if respondents-saw fit, as it seems they did, to stand upon their legal rights- and not recognize the contract as binding them to deliver the-balance of the timber left at the close of the winter of 1906, it was competent for them to do so, leaving appellant, as its only recourse to remedy the matter, enforcement of’ a cause-of action for damages, if any there were.

*385 The next legal principle applicable to the case, in the logical order of things, is this very familiar one: The damages recoverable for breach of contract are snch as may fairly and reasonably be considered to be the natural and proximate result thereof and which, in the light of circumstances known, actually or constructively, to both parties at the time of making the contract, may reasonably be supposed to have been in their mutual contemplation as the probable result of such breach. Hadley v. Baxendale, 9 Exch. 341; Guetzkow Bros. Co. v. A. H. Andrews & Co. 92 Wis. 214 , 66 N. W. 119 ; Gross v. Heckert, 120 Wis. 314, 321 , 97 N. W. 952 ; Anderson v. Savoy, 137 Wis. 44, 48 , 118 N. W. 217 .

In connection with the last foregoing rule is the one that, in case of a breach of contract, the rights of the parties are regarded as fixed at the time thereof, so, if such breach consists in failure to deliver upon a sale contract personal property to be paid for after delivery; there being, as in this case, no special circumstances rendering more than ordinary damages probably within the contemplation of the parties at the time of making the contract as likely to occur from such failure, the limit of legal damages is the difference, at the time of the breach, between the market value of the property at the time and place of delivery and the price the executory purchaser agreed to pay therefor with legal interest from the date of the breach. Richardson v. Chynoweth, 26 Wis. 656 ; Hill v. Chipman, 59 Wis. 211 , 18 N. W. 160 ; Muenchow v. Roberts, 77 Wis. 520, 522 , 46 N. W. 802 ; Kelley, M. & Co. v. La Crosse C. Co. 120 Wis. 84 , 97 EF. W. 674; Anderson v. Savoy, 137 Wis. 44, 48 , 118 N. W. 217 .

So if appellant suffered any recoverable loss by failure to deliver the timber as agreed upon, it consists of the difference between what the market value of the undelivered timber manufactured into sawlogs was at the time when and place where the same should have been delivered and the contract price thereof. What such logs were worth in the market the *386 succeeding winter, is entirely immaterial on this branch of the case.

In the light of the foregoing, since, as the fact is, there was no proof offered or received tending to show that the market value of such logs as respondents agreed to deliver at the time for the delivery, exceeded the contract price, there was an entire failure of proof to maintain appellant’s counterclaim. So respondents were entitled to recover, as they did, the undisputed market value of the logs delivered in the winter of 1906 and 1907. Breach of contract without any legal damages obviously gives no right of recovery. Main v. Procknow, 131 Wis. 279 , 111 N. W. 508 .

It is claimed on the part of respondents that making final payment for all logs delivered, after the time fixed in the writing for performance, without making any objection because of the breach, notwithstanding it had full knowledge of the facts, constituted a waiver of any further rights under the contract either for the balance of the logs or damages. There having been no pretense at the time payment was made that the contract had been fully performed, the mere payment for the logs delivered, keeping silent as to any further claim under the contract, did not of itself waive anything. The transaction was strictly according to the terms of .the writing. It contemplated payment for logs from time to time as they were delivered and scaled. One may always accept and pay at the contract rate for partial performance, as in this case, without waiving, by such circumstance alone, his right to redress for failure of full performance. Charley v. Potthoff, 118 Wis. 258 , 95 N. W. 124 . Such a case must not be confused with those where articles are delivered in performance of an executory contract of sale as and for the amount and kind agreed upon and áre received and retained with knowledge, or reasonable means of knowledge, that they do not fully answer the calls of the agreement, and without *387 notifying the vendor within a reasonable time that the articles are not accepted as full performance.

Notwithstanding the contract was not terminated by payment for the logs delivered under the circumstances stated, it does not follow that appellant had any further rights under it. It had no right to damages for the breach unless it suffered damages and none were established; as appellant evidently appreciated and conceded at the close of the trial. It had no legal right to further deliveries of logs after the close of the winter of 1906. The evidence is substantially all one way, as the trial court held, that the market value of the logs •delivered the second season was as claimed by respondents and that if they were entitled to recover on that basis the amount due them was as found in the directed verdict. The evidence is all one way, that respondents refused to recognize the contract which, by its terms, terminated at the close of the winter of 1906, as binding them to let appellant have the logs delivered the second season. The latter conceded upon the trial that it promised to pay the former the market price for logs the second season if the contract did not entitle it to them at the price named therein. The controversy between the parties at the commencement and during the early part of the second season, as the evidence conclusively shows and the court found, was not over the market price or the amount respondents should have for the logs in the absence of any writing governing the matter, but over whether respondents were bound to deliver the logs under the writing of 1906.

So the ease really turns, as the trial court found, on whether the writing was effective as to the second season notwithstanding the breach aforesaid and respondents’ insistence thereon. On that question the decision of the trial court was right though the grounds stated therefor are not altogether approved. Eurther performance of the contract on respondents’ part was not waived by appellant by the *388 occurrences in the spring of 1907 before mentioned. It terminated by its own limitations, subject to appellant's right to damages, if any were suffered, because of there being but partial performance and subject to mutual recognition, in case of there being such, of its further efficacy. Therefore the judgment must be affirmed.

By the Court. — So ordered.