Forster, Waterbury Co. v. F. MacKinnon Mfg. Co. 130 Wis. 281.

after February 16, 1900, till a considerable length of time. after the shipments were substantially completed, the court was warranted in holding as matter of law that such defects, as to the castings made after the patterns were improved, were waived. On that ground as well as on the ground that the dove-tailed slots were not so seriously defective as to render the castings not good and suitable for hub bands, within the meaning of the contract, the disallowance of this branch of the case should not be disturbed.

The remaining question to be considered is: Were the castings not used and not obviously defective upon inspection, amounting to about 42,412 pounds, shown to be worth less. than such as were contracted for because of their not being strong enough to stand the strain required to place them on the wooden hub cores, with sufficient certainty to entitle appellant to an allowance on its counterclaim on that account? The decision in the court below is that the evidence in that respect is not sufficiently convincing to remove the truth of the matter beyond mere conjecture. The items of appellant's claim for damages involved in this question are (a) the contract price, being $411.38, of the same percentage of the unused castings, not defective on their face, as proved wholly worthless as to those that were attempted to be put to use, less the value for scrap iron; (b) the value of the small percentage of wooden hub cores required in using the balance of the castings as past experience shows would probably be destroyed, being $156.80; and (c) cost of working off the stock, estimated at $169.65, making a total of $737.83. These claims should be considered as one, since the proper measure of damages, in case of a recovery, is the difference between the actual value of the castings and the value if they had been. according to the requirements of the contract. Aultman & T. Co. v. Hetherington, 42 Wis. 622; J. I. Case P. Works v. Niles & S. Co. 90 Wis. 590, 63 N. W. 1013; Park v. Richardson & B. Co. 91 Wis. 189, 64 N. W. 859.

The evidence is undisputed that the castings were neces

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Forster, Waterbury Co. v. F. MacKinnon Mfg. Co. 130 Wis. 281.

sarily subjected to great pressure in placing them on the wooden hub cores, and that in order for them to withstand it proper annealing and absence of defects called cold-shuts were necessary. Failure to so anneal the castings would leave them brittle and liable to break under the pressure, and coldshuts would cause them to part at the sides because of the imperfect uniting of the iron on the lines of contact of the molten metal as the streams thereof flowing into the several gates, or openings, in the mould came to the blending points.

The court having found, partly as matter of fact and partly by way of construction, that the contract as understood by both parties was made with reference to a sale and purchase of castings of sufficient strength to withstand the pressure required in placing them on the wooden hub cores, such pressure being for ordinary hubs about thirty tons, as shown by the evidence, and found as matter of fact in appellant's favor on its defense and counterclaim as to all castings shown by actual test not to be up to the requirement, and respondent having failed to except to any of the conclusions in that regard, it stands as a verity in the case that appellant is entitled to recover on its counterclaim for the diminished value of the unused castings on account of their not being up to such requirement, if such diminished value be established by the evidence with sufficient certainty to permit of an assessment of damages being made.

By reason of the state of the case referred to, unexcepted. to by respondent, there is no question of implied warranty nor any as to whether allowances were improperly made by the trial court, for failure of castings actually tested to come up to the required strength, that we need consider. Some such questions are discussed in respondent's brief, but may well be passed without further mention.

To enable appellant to recover for failure of the unused castings to come up to the contract requirements as to strength, it was not necessary to prove the amount of the de

Foster, Waterbury Co. v. F. MacKinnon Mfg. Co. 130 Wis. 281.

fectives nor the diminished value of the castings by reason thereof, with the certainty of a demonstration. All that was required was to establish such matters to a reasonable certainty. If more was required in judicially assessing damages many wrongs would go unrighted. It is familiar law that even loss of opportunity to make profits in a business is a proper subject for compensation in damages by the person producing such loss, and that proof of profits derived from such business covering a considerable period of operations furnishes a legitimate basis for determining the compensation recoverable for profits prevented through a discontinuance thereof produced by breach of contract. Shepard v. Milwaukee G. L. Co. 15 Wis. 318; Treat v. Hiles, 81 Wis. 280, 50 N. W. 896; Kelley, M. & Co. v. La Crosse C. Co. 120 Wis. 84, 90, 97 N. W. 674.

In the last case cited the court said:

"Only when the estimation of prospective profits involves such degree of speculation and uncertainty that it is likely to work injustice, rather than justice, should courts reject it if loss of profits is the result of the breach of the contract. ... Past experience may establish with sufficient certainty. what would have been the course and results of that business during a certain period of interruption" for the recovery of damages.

Applying the foregoing principle to the situation before us it would seem that if the evidence in this case shows that the 30,000 pounds of castings used, or attempted to be used, were fairly representative of the character of those that. remained, then a legitimate basis was established for estimating damages as to the latter. As we read the record that was shown. The evidence quite satisfactorily proves that from the time appellant commenced using the castings till the last of the 30,000 pounds was handled a large percentage proved to be not up to the contract strength by reason of improper annealing and cold-shuts; that about twenty per cent. of the castings had latent defects causing them to break under the

Forster, Waterbury Co. v. F. MacKinnon Mfg. Co. 130 Wis. 281.

pressure required to be put upon them and were wholly useless except for scrap iron. It does not seem necessary to refer to the evidence in detail on this subject. Since the defective character of the castings as to so large a quantity, including a number of invoices, was demonstrated by actual test, in the absence of any affirmative evidence to the contrary it is inferable, with sufficient certainty to sustain a finding as to the character of those that were not used, that they were likewise defective. To so conclude would not be indulging in mere guesswork, but in a fairly logical process of reasoning, similar to that by which past experience as to profits in a business forms a legitimate basis for determining prospective profits. In any case of the accumulation of a large quantity of manufactured articles, all of the same general kind, made at the same factory and from the same patterns or designs. and a large proportion thereof proving defective in certain particulars, one would naturally conclude, in the absence of evidence to the contrary, that the balance of the lot is likewise defective. We are constrained to hold that a mistake was made on this branch of the case; that too high a standard of certainty as to the establishment of facts was held to be necessary in order to enable a finding to be made on the subject of damages. In many situations compensation for loss, wrongfully produced, is recoverable where neither the loss generally nor the amount of it can be established except to a reasonable certainty.

The quantity of the unused castings, as before indicated, as appears without substantial dispute, if any, was 42,212 pounds. The only direct evidence in the record as to the diminished value of such castings from the contract requirements on account of their being brittle and defective because of cold-shuts, places such diminished value at one and onehalf cents per pound. That was corroborated by evidence as to the percentage that would probably break in placing the castings on hub cores, and extra cost of using them because of

State ex rel. Velie v. Morgan, 130 Wis. 293.

their weakness. It seems that from the whole evidence the difference between the value of such castings as were contracted for and such as were furnished because of the contract requirements as to strength not being satisfied, is fairly measured by one and one-half cents per pound, or $638.18 for the unused stock. That entitles appellant to judgment. against the plaintiff for $628.32 and interest from the time the counterclaim was interposed, to wit, January 10, 1903.

By the Court.-The judgment is reversed, and the cause remanded with directions to render judgment in favor of the defendant for $628.32 and interest from January 10, 1903, with costs.

STATE EX REL. VELIE, Appellant, vs. MORGAN, Respondent.

December 5, 1906-January 8, 1907.

Certiorari: Special tribunals: Jurisdiction: Review: Officers: Delivery of books and papers to successor: Statutes: Imprisonment: Penalty: Enforcement.

1. Under secs. 978, 979, 980, Stats. 1898 (providing that, if any person vacating an office refuses or neglects to deliver to his successor the books and papers of his office, complaint may be made by the successor to any judge of a court of record for the circuit or county where the person refusing resides, whereupon, after order to show cause, he shall be brought before such magistrate, and, unless he makes affidavit that he has delivered over all such books and papers, the judge shall, by warrant, commit him to jail, to remain until he shall deliver such books and papers or be otherwise discharged according to law), defendant M. petitioned the county judge of Waupaca county, alleging that V., the relator herein, had been removed from office, and that, M. having been duly appointed thereto, V. retained, and against M.'s demand refused to deliver, the books and papers in his custody.

Held:

(1) The proceeding before the county judge was not a special proceeding in court, but one before a special tribunal not