Buffalo Barb Wire Co. v. Phillips , 64 Wis. 338 ( 1885 )

Cole, C. J.

The order requiring the defendants to pay $598.11, admitted to be due in the original answer, was fully authorized by sec. 2892, R. S. Sellers v. Union Lumbering Co. 36 Wis. 398. It seems to us too plain for argument that the answer admitted the plaintiff’s claim to that extent to be just, therefore no further comment will be made on that point.

Assuming that this order was correctly made upon the pleadings as they then stood, was there any error in the refusal of the court to set it aside and allow the amended answer to be filed? We think not. Both the original and amended answer claimed damages for a breach of warranty in the quality of the wire, and on account of the looseness of the barbs on the same, in the sum of $350. But in the amended, answer an additional claim for damages is set up, Avhich is that by reason of the failure of the plaintiff to deliver to the defendants wire of the kind, quality and description agreed upon, the defendants were delayed and prevented from entering into that branch of business in its season, and were thereby injured in the sum of $650.

There is no allegation in either answer that the plaintiff undertook and agreed to deliver the wire in any specified .time, nor does it appear when in fact it was delivered. Nor is there any averment that the plaintiff was informed, when the wire was ordered, as to what use it was to be put, or that the defendants purchased it for sale in their business. From the allegation in the amended answer that the defendants were engaged in the wholesale agricultural implement trade in the city of Milwaukee when the plaintiff’s agent called at their place of business and took the order for the wire, it may be inferred the agent knew the business in which the defendants were engaged. But this is not enough. To lay the foundation for damages for loss in their business because defendants were prevented by the delay from entering into that branch of business in its season, it should distinctly appear that the special circumstances were communicated to the plaintiff’s agent when the order was taken, and he was informed of the purpose for which the wire was purchased. Otherwise no damages, could be recovered on that ground. This question is considered in the recent case of Thomas, Badgley & Wentworth M. Co. v. W., St. L. & P. R. Co. 62 Wis. 642, to which we refer for our views on this point. There were no facts stated in the amended answer which would sustain a claim for special damages on the ground that the defendants were injured in their business by reason of the failure of the plaintiff to deliver the wire as it had agreed to do. So, really, the amended answer •contained no additional claim for damages which could be recovered in the action. It was therefore not error to refuse to allow it to be filed.

By the Oourt. — The orders of the county court appealed from are affirmed.