The findings of fact, so called, do not appear to be contrary to the clear preponderance of the evidence, therefore they should not be disturbed. The one to the effect that the written contract for a sale by defendant to plaintiff of 400 tons of ice f. o. b. cars Pewaukee at a stipulated price, the same to be loaded for shipment from time to time as demanded by plaintiff between April 1 and October *471, 1904, was modified by mutual agreement as to delivery of the full amount within such, time, is more in the nature of a ■conclusion of law than one of fact. It is based on these ■evidentiary circumstances: Appellant ordered ice and received and used the same notwithstanding respondent had breached the agreement by failing to ship two cars per week ■as demanded and to pack that which had been shipped in the manner agreed upon, and respondent continued to ship ice within a reasonable time on orders notwithstanding appellant had not paid for prior shipments according to contract.
Since it is undisputed in the evidence that had ice been •shipped at the rate of two cars per week as demanded all vrould have been delivered within the time agreed upon and plaintiff had use therefor and did not refuse to receive ice till the close of the season and after the time limited by the writing for making deliveries, we are unable to see how it can be rightly said that the necessary inference from the circumstances found is that plaintiff waived the provision of the agreement entitling him to the full amount, or that the situation disclosed any probability that the minds of the parties met as to such waiver.
Appellant’s demand for and receipt and appropriation of ■ice without objection, notwithstanding the breach, bound him to pay for what he obtained as being the kind of product contracted for, but did not, necessarily, affect his right to damages caused by the delay in shipping according to the demand for two cars per week or for failure to seasonably forward the full amount. His conduct in that regard and respondent’s consent to ship ice notwithstanding the delayed payments are perfectly consistent with the former’s retention of •such right.
Though the foregoing requires a reversal of the judgment there is an insuperable difficulty in the litigation being finally terminated without some further proceedings in the trial court. The evidence in the record does not furnish any *48legitimate basis for an assessment of damages according to the rules governing tbe subject.
No principle is better established than that damages for breach of contract, under ordinary circumstances, are limited to such as may be considered to arise according to the usual course of things from such breach and so must be regarded, reasonably, as having been in contemplation by the parties at the time of mating the contract as the probable result of the breach of it, or, in case of special circumstances,, such as may reasonably be supposed to have been in such contemplation in view thereof so far as such special circumstances were known to both parties at the time of such making. 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. It is considered that there are no such special circumstances to be dealt with in this case. Eor aught that appears the contract was for the sale, delivery, and receipt of and payment for an ordinary article of merchandise-during the late spring, the summer, and late fall months; an article not obtainable readily, and sometimes not at all, in large quantities, unless contracted for before the season opens or is far advanced, and which appellant depended upon, as is usually the case, to supply his retail trade during the season of active demand. The true measure of damages as to the property not delivered in such a case is the difference between what the same would have cost the purchaser under the contract when he should have received the same and the fair-market value at such time with interest thereon in case of' the subject of the transaction being reasonably obtainable in the market, otherwise the difference between such cost and what the property would have been actually worth to him when he ought to have received the same. Hill v. Chipman,. 59 Wis. 211, 18 N. W. 160; Muenchow v. Roberts, 77 Wis. 520, 522, 46 N. W. 802; T. B. Scott L. Co. v. Hafner-Lothman Mfg. Co. 91 Wis. 667, 65 N. W. 513; Kelley, Maus & Co. v. La Crosse C. Co. 120 Wis. 84, 91, 97 N. W. 674.
*49The evidence in the record does not show with sufficient definiteness to warrant this court in finding that ice sufficient to make np the deficiency was not reasonably obtainable in the market at appellant’s place or within practical reach therefrom. But if it were otherwise there is no proof of wdiat ice shipped according to the contract would have been worth to appellant had the same been forwarded as agreed upon. The price he could have retailed the ice for is not the test. The evidence leaves the matter at that point. It was assumed that railroad weights at the shipping point would hold out in the retail trade at the delivery point, while it would seem that the fact may or must have been otherwise. In the very nature of things, the loss by melting and by cutting into shapes and quantities for customers would have been considerable. On the whole, it does not seem that there has been a fair trial of the question of damages with a proper appreciation of the legal rules applicable to the situation, so the court is of the opinion that the judgment must be reversed and the cause remanded for a new trial as to the amount of damages appellant is entitled to recover.
By the Court. — So ordered.