Colb, J.
This is an action for damages brought against tbe defendants as buyers, for refusing to accept a certain quantity of lumber sold them by tbe plaintiff. Tbe complaint, as amended on tjie trial before tbe referee, in substance alleged that tbe parties entered into a contract in September, 1868, in and by which tbe defendants agreed to accept and receive all tbe lumber which should be manufactured for the plaintiff at tbe mill of [292] one Esterbrook, at Eau Olaire, during tbe remainder of tbe sawing season of tbat year, so long as tbe defendants could run said lumber — they paying tberefor at tbe rate of $13 per thousand feet board measure, as fast as tbe same should be manufactured and delivered, in thirty days after such delivery. Tbe contract was verbal, but it appears tbat two lots of lumber were delivered on tbe contract, and tbat sometime in tbe last of October or first of November, tbe plaintiff tendered upon tbe contract about 79,000 feet of lumber, which tbe defendants refused to receive. Tbe defendants claimed tbat by tbe terms of tbe contract they only agreed to accept lumber from tbe plaintiff so long as they should run their mill tbat season, and tbat they closed their mill before this lumber was ready for delivery, and tbat consequently they were not bound to receive it.
On tbe trial before tbe referee, tbe defendants asked tbe witness Kennedy — one of tbe defendants — at what time tbe season for running lumber down tbe Chippewa and Mississppi rivers closed tbat year. Tbe question was objected to and ruled out. It was insisted by tbe defendants before tbe circuit court tbat tbe referee erroneously excluded this evidence, but tbe court below seems to have thought tbat this ruling was correct and confirmed tbe report, notwithstanding this objection. This is tbe first error relied upon here for a reversal of tbe judgment.
It appears to us tbat this evidence was competent and should have been received. According to tbe contract as set forth in tbe complaint, and as testified to by tbe plaintiff himself, tbe defendants agreed to receive all lumber which should be manufactured for tbe plaintiff at tbe mill of Esterbrook, during tbe fall of 1868, so long as they could run tbe lumber down tbe Chippewa and Mississsippi rivers tbat season. This was tbe contract according to tbe plaintiff’s understanding, and for breach of which tbe action was brought. In this view of tbe matter, is it not manifest tbat tbe time when tbe season for running lumber down tbe Chippewa and Mississippi rivers closed, was a material question in tbe case ? Suppose tbe defendant s could show [293] tbat tbe season, for running lumber down those rivers, practically closed for tbat year, before tbis 79,000 feet was ready for delivery upon tbe contract, would not tbis be a perfect defense to tbe action, even upon tbe plaintiff’s case? The question really admits of no discussion. If tbe defendants received all tbe lumber ready for delivery during tbe season, while they could run to market, then manifestly they bad performed their contract. They were certainly under no obligation to receive tbe lumber after tbe lumber running season bad closed, and after tbe time they bad agreed to accept it. And hence it was proper and material to show in tbis aspect of tbe case when tbe season for running lumber down tbe river, did in fact practically close tbat fall. Tbe evidence offered and excluded, was intended to prove tbat fact and should have been admitted. It is true it appeared in evidence tbat tbis lumber was, after it was tendered to tbe defendants on tbe contract, run by tbe plaintiff down to Lansing, Iowa, and there sold about tbe middle of November. But even tbis does not satisfactorily show tbat tbe lumber was tendered within tbe time contemplated by tbe parties, and before tbe season for running lumber bad closed. For tbe contract evidently required tbat tbe plaintiff should have bis lumber ready for delivery during tbe lumber running season, and it would not do to tender lumber after tbis time, even though it might be physically possible to run it down tbe river. Eunning tbe lumber out of season might be attended with increased expense, risk and danger, and a fair, reasonable interpretation of tbe contract, required tbat tbe lumber should be ready for delivery during tbe running lumber-season, and not after tbat bad practically closed. And upon tbis construction of tbe contract, it is very obvious tbat tbe evidence offered bad a direct bearing upon one of tbe material issues in tbe case. And for tbe error in excluding it, there must' be a new trial.
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Colb, J.
This is an action for damages brought against tbe defendants as buyers, for refusing to accept a certain quantity of lumber sold them by tbe plaintiff. Tbe complaint, as amended on tjie trial before tbe referee, in substance alleged that tbe parties entered into a contract in September, 1868, in and by which tbe defendants agreed to accept and receive all tbe lumber which should be manufactured for the plaintiff at tbe mill of [292] one Esterbrook, at Eau Olaire, during tbe remainder of tbe sawing season of tbat year, so long as tbe defendants could run said lumber — they paying tberefor at tbe rate of $13 per thousand feet board measure, as fast as tbe same should be manufactured and delivered, in thirty days after such delivery. Tbe contract was verbal, but it appears tbat two lots of lumber were delivered on tbe contract, and tbat sometime in tbe last of October or first of November, tbe plaintiff tendered upon tbe contract about 79,000 feet of lumber, which tbe defendants refused to receive. Tbe defendants claimed tbat by tbe terms of tbe contract they only agreed to accept lumber from tbe plaintiff so long as they should run their mill tbat season, and tbat they closed their mill before this lumber was ready for delivery, and tbat consequently they were not bound to receive it.
On tbe trial before tbe referee, tbe defendants asked tbe witness Kennedy — one of tbe defendants — at what time tbe season for running lumber down tbe Chippewa and Mississppi rivers closed tbat year. Tbe question was objected to and ruled out. It was insisted by tbe defendants before tbe circuit court tbat tbe referee erroneously excluded this evidence, but tbe court below seems to have thought tbat this ruling was correct and confirmed tbe report, notwithstanding this objection. This is tbe first error relied upon here for a reversal of tbe judgment.
It appears to us tbat this evidence was competent and should have been received. According to tbe contract as set forth in tbe complaint, and as testified to by tbe plaintiff himself, tbe defendants agreed to receive all lumber which should be manufactured for tbe plaintiff at tbe mill of Esterbrook, during tbe fall of 1868, so long as they could run tbe lumber down tbe Chippewa and Mississsippi rivers tbat season. This was tbe contract according to tbe plaintiff’s understanding, and for breach of which tbe action was brought. In this view of tbe matter, is it not manifest tbat tbe time when tbe season for running lumber down tbe Chippewa and Mississippi rivers closed, was a material question in tbe case ? Suppose tbe defendant s could show [293] tbat tbe season, for running lumber down those rivers, practically closed for tbat year, before tbis 79,000 feet was ready for delivery upon tbe contract, would not tbis be a perfect defense to tbe action, even upon tbe plaintiff’s case? The question really admits of no discussion. If tbe defendants received all tbe lumber ready for delivery during tbe season, while they could run to market, then manifestly they bad performed their contract. They were certainly under no obligation to receive tbe lumber after tbe lumber running season bad closed, and after tbe time they bad agreed to accept it. And hence it was proper and material to show in tbis aspect of tbe case when tbe season for running lumber down tbe river, did in fact practically close tbat fall. Tbe evidence offered and excluded, was intended to prove tbat fact and should have been admitted. It is true it appeared in evidence tbat tbis lumber was, after it was tendered to tbe defendants on tbe contract, run by tbe plaintiff down to Lansing, Iowa, and there sold about tbe middle of November. But even tbis does not satisfactorily show tbat tbe lumber was tendered within tbe time contemplated by tbe parties, and before tbe season for running lumber bad closed. For tbe contract evidently required tbat tbe plaintiff should have bis lumber ready for delivery during tbe lumber running season, and it would not do to tender lumber after tbis time, even though it might be physically possible to run it down tbe river. Eunning tbe lumber out of season might be attended with increased expense, risk and danger, and a fair, reasonable interpretation of tbe contract, required tbat tbe lumber should be ready for delivery during tbe running lumber-season, and not after tbat bad practically closed. And upon tbis construction of tbe contract, it is very obvious tbat tbe evidence offered bad a direct bearing upon one of tbe material issues in tbe case. And for tbe error in excluding it, there must' be a new trial.
In tbe event it should be established on another trial, tbat tbe contract was as claimed by tbe plaintiff, and tbat tbe lumber was tendered upon it within tbe season for running lumber, [294] then it will lie necessary to consider what is the proper measure of damages for a non-acceptance of the lumber. And upon that point, we suppose the ordinary rule to be the difference between the contract price and the value of the lumber at Eau Claire, the place of performance, at the time the contract was broken. The editor of Mr. Sedgwick’s work on the Measure of Damages, says that “ in an action for the non-acceptance of property sold or contracted for, the measure of damages is the amount of actual injury sustained by the plaintiff in consequence of such non-acceptance, which is usually the difference between the price agreed and its value, where the price exceeds the value. If it is worth the price, the damages are nominal only. But where the property is worthless in the hands of the plaintiff, the whole price agreed should be recovered. Allen v. Jarvis, 20 Conn., 38. In order to give the vendor complete indemnity, he must recover the difference between the agreed price and that at which he would sell on the day when the vendee was bound to receive and pay for the thing bought. Dana v. Fiedler, 12 N. Y., 40,” (p. 319, note 1, 4th Edition.) In the case of Dana v. Fiedler, the court states the doctrine upon this subject in the following words: “ In a suit by the vendor against the vendee for non-acceptance of articles sold, in order to give him a complete indemnity, he'must recover the difference between the agreed price and that at which he could sell on the day when the vendee was bound to receive and pay for the thing bought.” p. 48. In this case the contract was executory. The title to the lumber remained in the plaintiff. There was not such a setting apart of the lumber and a tender thereof to the defendants as to pass the property. This is very plain upon the evidence. And therefore, the proper measure of damages for the non-acceptance of the lumber, is the difference between the contract, price and the market price at Eau Claire, at the time when the contract was broken. Benjamin on Sales, p. 559. This is the rule as laid down by this court in Ganson v. Madigan, 13 Wis., 67-72, when Mr. Justice Paine [295] says: “ When the vendor has actually taken all the steps necessary to vest the title to the goods sold in the vendee, he may sue for goods sold and delivered, and the rule of damages would be the contract price. But where he is ready and willing to perform, and offers to do so, but the vendee refuses, even though the title is not vested in the vendee, the vendor still has his action on the contract for damages. But the rule of damages in such case would be the actual injury sustained, which is ordinarily the difference between the value of the property at the time of the refusal, and the price agreed on. Chitty on Con., 384; Chitty’s Pl., 347; 2 Parsons on Con., 484, note h; Thompson v. Alger, 12 Met., 428; Allen v. Jarvis, 20 Conn., 38; Girard v. Taggart, 5 S. & R., 19.” See also Mallory v. Lord, 29 Barb., 454; Andrews v. Hoover, 8 Watts, 239; McComb v. McKennan, 2 W. & S., 216.
In this case the lumber was run to Lansing, Iowa, and sold, and the plaintiff was permitted to recover the difference between the price the lumber sold for at that place — after deducting the necessary expenses of running the lumber there— and the contract price. We do not readily perceive upon wliat principle the plaintiff could claim the right to run the.lumber to that place and sell it, and then charge the defendants with the difference between the price contracted to have been paid and what it sold for at Lansing, after deducting the expense of running it there. What right had the plaintiff to select this market at their expense? The lumber was to be delivered at Eau Claire. There is where the defendants had agreed to accept it. Selling the lumber at any place, as is said in Andrews v. Hoover, supra, is only a convenient and satisfactory means of ascertaining the difference between the contract price and value of the lumber when it ought to be accepted, but it is not the only means. The plaintiff might, however, show by other evidence what the lumber was worth at Eau Claire, without resorting to a sale, even there, to test its value. But to run the lumber away for a distance of two [296] or three hundred miles, at that season, and charge the defendants -with the increased risk and expense of a re-sale in a foreign market, is imposing upon them a loss which the law does not intend for a breach of the contract.
These remarks are deemed sufficient to inform the court below of our views as to the proper rule of damages, if it should be found that the defendants ought to have accepted the 79,000 feet of lumber when it was tendered by the plaintiff.
By the Court — The judgment of the circuit court is reversed and a new trial ordered.