#### American Foundry and Furnace Company, Appellant, vs. Settergren and another, Respondents.

*December 5, 1906*

January *8, 1907.*

*Sales: Offer to accept return of goods: Failure to return: Remedy of seller: Consideration: Breach of contract: Damages: Appeal and error: Conflict of evidence: Findings: Market value: Witnesses: Competency.*

1. A buyer, having received goods ordered accompanied by an invoice, objected to tbe price and sent bis check to tbe seller for ■ tbe amount he claimed to be a fair price. Tbe seller immediately replied insisting on tbe price named in tbe invoice, but gave tbe buyer tbe option to keep tbe goods at tbe demanded price or to redeliver tbe goods to tbe seller at once. Tbe buyer thereupon requested tbe return of bis check, which was returned, but failed to redeliver tbe goods. *Held:*

(1) Tbe return of tbe check was a sufficient consideration for tbe promise of tbe buyer to redeliver tbe goods.

(2) Tbe inconsistent conduct of tbe buyer in retaining and using tbe goods gave tbe seller tbe right to elect to bold tbe buyer on an implied contract to pay tbe demanded price, or to stand on the contract to return tbe goods and to recover its damages instead of tbe demanded price.

2. In such case, the seller having elected to stand on tbe contract to return the goods, its damages, in tbe absence of peculiar circumstances, were tbe market value of tbe goods.

3. In such case the election of tbe seller opens tbe door to tbe buyer to offer proof in negation of tbe damages claimed, and, there being conflict of evidence upon that subject, it was *held*that tbe verdict of the jury could not be set aside on appeal.

4. Where a witness, called to prove market values, appears sufficiently familiar in general with that subject to arouse tbe judicial duty of tbe trial court to decide as to his qualifications, tbe decision of that court will be affirmed unless clearly wrong.

*339Appeal from a judgment of the circuit court for Sauk county: E. Ray Stevens, Circuit Judge.

*Affirmed.*

Defendants, local hardware dealers, ordered from the Eut-tan Manufacturing Company certain bar grates for one of their furnaces in use in a school building at Bamboo. They received from the plaintiff such grates, which were turned •over to the school officers and put into the furnace. A few ■days later defendants received from the plaintiff a bill of $45 for the grates, with the explanation that the plaintiff was the successor to the business of the Euttan Manufacturing Company. Defendants objected to the price, and sent their check for $21.37, which they claimed to be fair. Plaintiff' immediately replied that the manufacturers had raised price of these grates, and they could not be obtained for less, but gave defendants the choice to retain the goods and pay the price of $45 for 'same, or to return them to the shipper at once. To this proposition the defendants replied November 14, 1902, by letter, that, upon return of their check, the goods would be returned at once, as per instruction. The check was sent them. Bpon a later inquiry defendants wrote, December 11th, “the furnace repairs that you refer to have been returned, as per instructionsbut, as matter of fact, they never did return them, and they remained in the school furnace permanently. About December 31st a set of castings was made by a local foundryman from those grates as patterns, and those castings were sent in pretended return of the grates, but were refused. The complaint, after amendment in circuit ■court, declared that prior to November 14th defendants were in possession of these goods received from plaintiff; that on that date defendants agreed with plaintiff that they would return and redeliver said goods, but that they had wholly failed .and neglected so to do, and thereby plaintiff had suffered damage in the sum of $60, together with interest on $45 from November 14th, for which amounts judgment was prayed. The foregoing facts were established without controversy, ex*340cept as to the damages. Upon the trial but one issue was submitted to the jury, namely, the reasonable value of the property in question in October, 1902, which was answered by the-jury to be $20.62. The defendants, before suit, having tendered $26.25, and maintained the tender by delivering it into court, the judgment directed that such sum of $26.25 be-turned over to plaintiff, and that defendants recover judgment for costs. From this judgment the plaintiff appeals.

For the appellant there was a brief by *Bentley & Kelley*and *F. C.*Eschweiler, and oral argument by *F. R. Bentley.*

For the respondents there was a brief by Grotophorst, *Evans &*Thomas, and oral argument by *Evan A. Evans.*

Dodge, J.

It can hardly be doubted that the defendants,, by promising upon sufficient consideration, namely, the return of their check, to redeliver the property in question, and-by their inconsistent conduct in retaining and using the grates, after notice to them that they could do so only upon payment: of the price of $45, gave to the plaintiff the right to elect to hold them to either of two contracts. By their retention of' the grates after such notification they had doubtless so acted as to give plaintiff a right to insist on an implied contract to-, pay therefor $45 *(Wellauer v.*Fellows, 48 Wis. 105, 4 N. W. 114); but by previously promising, for a consideration, to return the grates, they had entered into another contract upon-which plaintiff might also rely. If it elected the former, plaintiff could recover only the agreed price of $45. If, however, relying on their promise to *return*the grates, plaintiff had, within reasonable anticipation of the parties, entered into new engagements with reference thereto, or otherwise-changed its situation, its damages might exceed that sum, and. such damages it would be entitled to recover. It also, in such case, might be able to prove that the price named for such grates was less than their real value, and that the failure to-return -them to it had caused damage to such full value. In.. *341this situation the plaintiff elected to stand upon the contract to return the goods and to recover its damages instead of the agreed price, and alleged such damages to be $60 and some interest instead of $45 and interest, which must have measured its recovery had it elected otherwise. There is no ambiguity in the grounds on which the plaintiff stands in this action. It is the recovery of the damages suffered by it from breach of the contract to return. Ordinarily, and in the absence of peculiar circumstances, the damages resulting from the’ failure to deliver an article of merchandise is the reasonable market value thereof, upon the assumption that the plaintiff could have supplied himself with the same articles by paying such reasonable market value. Of course, this amount might be enhanced by special circumstances, such as necessity of expense or delay and consequent loss of profit, if such could be proved and were within the reasonable anticipation of the parties. Kelley, *M. & Co. v. La Crosse C. Co.*120 Wis. 84, 97 N. W. 674. Had the plaintiff been able to satisfy the jury that the market conditions with reference to these particular articles were such that it could not supply itself with like property for less than $45, or even for less than the $60 claimed, its recovery might have extended to such sum, but it had, of course, opened the door to the defendants to offer proof in negation of any such amount of damages, and, to that end, to call witnesses as to the market value. In other words, plaintiff, in seeking to enhance its recovery above the price which had been agreed upon, opened the door to proof that its damages from nonreturn were really less than that price, as indeed they were if it could have obtained a new supply of such grates without expense or other injury at less than $45. Hence we can see no escape from the conclusion that the evidence as to reasonable value was admissible, nor, since there was conflict of evidence upon the subject, that the verdict of the jury cannot be set aside upon appeal.

The overruling of plaintiff’s objection to qualification of *342defendants’ witnesses to testify as to market values we do not think presents error. Sufficient familiarity in general with the subject of market values of such property was shown to arouse the judicial duty pf the trial court to decide as to such qualification, and we cannot say that his decision is so clearly wrong that it can be held erroneous upon appeal, under the rule so often announced as to the weight to be given to the decision of the trial court as to competency of witnesses or other forms of evidence. *Hupfer v. Nat. D. Co.*119 Wis. 417, 427, 96 N. W. 809.

*By the Court.*— Judgment affirmed.