Thomas A. King v. Randall L. Niederkorn

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 11, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP281 Cir. Ct. No. 2018CV3

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

THOMAS A. KING AND KIRSTEN R. KING D/B/A KINGS LOGGING AND
TREE SERVICE,

PLAINTIFFS-RESPONDENTS,

V.

RANDALL L. NIEDERKORN, REED NIEDERKORN, ROGER W.
NIEDERKORN, ROBERT T. NIEDERKORN AND RICHARD H. NIEDERKORN,

DEFENDANTS-APPELLANTS.

APPEAL from a judgment of the circuit court for Trempealeau
County: RIAN RADTKE, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

¶1 HRUZ, J. As owners of several hundred acres of land, Randall,
Reed, Roger, Robert and Richard Niederkorn entered into a logging contract with
Thomas and Kirsten King to cut and sell timber from portions of the Niederkorns’
No. 2021AP281

property.1 Several months after the Kings began performing their contractual
obligations, the Niederkorns terminated the contract. The Kings later commenced
this action, alleging, among other things, that the Niederkorns’ termination of the
contract was a breach of the contract and caused the Kings to suffer lost profits.

¶2 At the end of a bench trial, the circuit court concluded that the
contract required a material breach before the Niederkorns could terminate it.
Because the court found that none of the Kings’ seven breaches of the contract
were material, it determined that the Niederkorns had improperly terminated the
contract. After offsetting the Niederkorns’ damages, the court entered a judgment
awarding monetary damages to the Kings. On appeal, the Niederkorns challenge
both the court’s conclusion regarding the legal standard for terminating the
contract and its findings regarding whether the Kings’ breaches of contract were
material.

¶3 Consistent with Wisconsin common law, we conclude that the
contract required a material breach before the Niederkorns could terminate it.
Although Wisconsin law permits parties to specify the circumstances in which a
contract can be terminated, the parties’ contract here did not expressly permit
termination upon something less than a material breach. In addition, we conclude
the circuit court did not apply an improper legal standard in determining whether
the Kings’ breaches of contract were material, nor were the court’s related
findings of fact clearly erroneous. Accordingly, we affirm.

1
We note that the parties’ respective businesses entered into the contract. Specifically,
the Niederkorns entered into the contract pursuant to their partnership, “Niederkorn Farms.”
Likewise, the Kings entered into the contract pursuant to their sole proprietorship, “Kings
Logging.”

2
No. 2021AP281

BACKGROUND

¶4 In November 2015, the parties executed a “TIMBER SALE
CONTRACT,” which provided that the Kings would harvest timber from the
Niederkorns’ property and pay the Niederkorns a fixed amount for the timber.
The contract language was primarily taken from a contract template drafted by the
Wisconsin Woodland Owner’s Association, but William Reynolds, a consultant
forester who worked with the Niederkorns, made some edits to the contract on
their behalf.

¶5 The contract required, among other things, that all work be
completed by April 15, 2018; that the Kings pay the timber prices set forth in a
products table in the contract; that no operations occur on the property during the
November and December months of each year “so as not to disturb deer hunting
opportunities”; that the Kings comply with the relevant “Best Management
Practices”; and that the Kings “reserve and stay out of the pine [trees].” The
contract estimated that the Kings would pay a total amount of $141,325 to the
Niederkorns for the timber. In addition, paragraph four of the contract provided
that “[t]he [Niederkorns] may terminate this Contract by oral or written notice to
the [Kings] upon its breach.”

¶6 When the Niederkorns entered into the contract, they were enrolled
in a state program that imposed certain timber removal requirements on their
property in exchange for a reduction in their property taxes. Specifically, the
program required the Niederkorns to perform an “overstory removal” on 224 acres
of their property, which essentially required that “almost all of the timber” be cut,
with some exceptions.

3
No. 2021AP281

¶7 The Kings commenced work under the contract in July 2016. In
December 2016, the Niederkorns sent the Kings a letter terminating the agreement
and stating that “[t]here have been numerous breaches of the contract by [the
Kings] including conducting logging operations during the closed
period … (November 1-December 31), conducting logging operations in the
closed pine area …, and selling wood outside of the products [sales] table.” The
Niederkorns also requested a “face to face audit” with the Kings “to resolve the
large discrepancy between the product sales table and the payments to the seller.”

¶8 The Kings later commenced this action alleging a breach of contract
claim against the Niederkorns. The Niederkorns, in turn, counterclaimed with
their own breach of contract claim, alleging numerous breaches by the Kings. The
case proceeded to a bench trial, which was bifurcated into a breach phase and a
damages phase.

¶9 At the conclusion of the breach phase, the circuit court found that the
Kings had breached the logging contract in seven ways: (1) by failing to provide
the Niederkorns with “mill slips” documenting information about the logs sent to a
mill; (2) by improperly paying “pulpwood prices” for one load of “sawtimber”;
(3) by hauling logs from the property between November 1 and November 4,
2016; (4) by making multiple late payments to the Niederkorns; (5) by causing and
not fixing rutting2 on the property; (6) by using slash3 as a “top road” on the

2
The contract does not define the term “rutting.” Generally speaking, rutting means “an
elongated depression caused by wheels or tracks of machinery, equipment or other vehicles and is
6 inches deep or more.” See, e.g., WIS. ADMIN. CODE § NR 345.03(12m) (Mar. 2014).
3
The term “slash” is defined under the contract as “any tree tops, limbs, bark, abandoned
forest products, windfalls or other debris left on the land after timber or other forest products have
been cut.” See WIS. STAT. § 26.12(6)(a) (2019-20).

4
No. 2021AP281

property without prior authorization from the Niederkorns; and (7) by damaging
thirty-seven pine trees.

¶10 The circuit court recognized, however, that Wisconsin law requires a
material or substantial breach before a contract may be terminated, and it
concluded that the language in paragraph four of the contract “does not contract
out of Wisconsin law.” Applying this material-breach requirement, the court
found that none of the Kings’ breaches—either individually or collectively—were
material or substantial, such that the Niederkorns would be justified in terminating
the contract.

¶11 At the end of the damages phase, the circuit court found that the
Kings suffered $81,804.59 in total damages, which was largely due to the Kings’
lost profits after the Niederkorns improperly terminated the contract. The court
also found that the Niederkorns suffered $13,627.23 in total damages as a result of
the Kings’ contract breaches. After offsetting the Niederkorns’ damages and
awarding the Kings costs and disbursements, the court entered a judgment of
$71,621.78 in favor of the Kings.

¶12 The Niederkorns now appeal. Additional facts will be provided as
necessary below.

DISCUSSION

I. The degree of breach required to terminate the contract

¶13 It is well established under Wisconsin common law that a party to a
contract is obligated to perform in accordance with the contract terms unless the
other party commits a material breach of the contract. Ranes v. American Fam.
Mut. Ins. Co., 219 Wis. 2d 49, 57, 580 N.W.2d 197 (1998). A breach is material

5
No. 2021AP281

if it is so serious and substantial as to destroy the essential objects of the
agreement. Management Comput. Servs., Inc. v. Hawkins, Ash, Baptie & Co.,
206 Wis. 2d 158, 183, 557 N.W.2d 67 (1996). However, if a party’s breach is
“relatively minor” and not “of the essence,” the other party is still bound by the
contract and cannot abandon performance. See id. (citation omitted). The parties
do not dispute these general principles.4

¶14 Still, the Niederkorns argue, and the Kings do not dispute, that
contracting parties are free to determine a contract’s terms, including the specific
circumstances under which the contract may be terminated, even if those standards
are different from Wisconsin’s material-breach requirement.5 Indeed, parties are
generally free to contract as they see fit, provided that the contract does not
impose obligations that are contrary to public policy, as expressed by statute,
administrative regulation, or by judicial expression of the policy of the common
law. Northern States Power Co. v. National Gas Co., 232 Wis. 2d 541, 545-46,

4
Prior precedent has consistently used the term “material breach” to describe a breach
that excuses a party’s future performance under a contract. See Ranes v. American Fam. Mut.
Ins. Co., 219 Wis. 2d 49, 57, 580 N.W.2d 197 (1998) (“[A] party to a contract is obligated to
perform in accordance with the contract terms unless the other party’s breach is material.”);
Management Comput. Servs., Inc., v. Hawkins, Ash, Baptie & Co., 206 Wis. 2d 158, 183, 557
N.W.2d 67 (1996) (“[A] material breach by one party may excuse subsequent performance by the
other.”). One could fairly argue, however, that the relevant standard requires a breach to be both
“substantial” and “material.” See Ranes, 219 Wis. 2d at 57 (“For a breach to be material, it must
be [1] so serious as to destroy [2] the essential object of the agreement.”). To the extent both
concepts are required, our use of the term “material breach” is not intended to exclude or dismiss
the requirement that a breach also be substantial.
5
The Niederkorns seem to conflate termination with rescission. “Rescission and the
right to terminate a contract are distinct remedies. Termination of a contract does not seek to
undo the contract, but to terminate obligations going forward, while rescission is the unmaking of
a contract.” Ashker v. Aurora Med. Grp., Inc., 2013 WI App 143, ¶18, 352 Wis. 2d 193, 841
N.W.2d 297 (Neubauer, J., concurring). The contract specifically provides for the right to
terminate the contract under certain circumstances, but it does not address rescission.
Accordingly, we construe the Niederkorns’ arguments to be seeking termination, not rescission.

6
No. 2021AP281

606 N.W.2d 613 (Ct. App. 1999). Accordingly, we agree with the Niederkorns’
general proposition that contracting parties can conceivably agree to
circumstances in which a contract can be terminated even if those circumstances
would not ordinarily establish a material breach.6

¶15 Consistent with this general proposition, the Niederkorns argue that
language in the contract’s termination provision allows them to terminate the
contract for any breach, not only material breaches. As noted earlier, the
termination provision in paragraph four of the contract provides that “[t]he
[Niederkorns] may terminate this Contract by oral or written notice to the [Kings]
upon its breach.” The Niederkorns contend that this language is unambiguous and
expressly shows that the parties sought to avoid Wisconsin’s material-breach
requirement. They further argue that they were justified in terminating the
contract because the Kings had breached the contract in several respects, which
the circuit court expressly found.

¶16 The Niederkorns’ argument presents a question of contract
interpretation, which is a question of law that we review de novo. See Marx v.
Morris, 2019 WI 34, ¶20, 386 Wis. 2d 122, 925 N.W.2d 112. Our interpretation
of a contract is governed by the contract’s language, which “is construed
according to its plain or ordinary meaning, consistent with ‘what a reasonable
person would understand the words to mean under the circumstances.’” Ash Park,
LLC v. Alexander & Bishop, Ltd., 2015 WI 65, ¶¶34, 37, 363 Wis. 2d 699, 866

6
Because we agree that contracting parties can determine the circumstances in which the
contract can be terminated, we do not address the Niederkorns’ legal authority from other
jurisdictions addressing that issue.

7
No. 2021AP281

N.W.2d 679 (citations omitted). The goal in interpreting a contract is to give
effect to the parties’ intentions. Id., ¶34.

¶17 Where the terms of a contract are clear and unambiguous, we
construe the contract according to its literal terms. Tufail v. Midwest Hosp., LLC,
2013 WI 62, ¶26, 348 Wis. 2d 631, 833 N.W.2d 586. “We presume the parties’
intent is evidenced by the words they chose, if those words are unambiguous.” Id.
(citation omitted). The court’s role in interpreting a contract “is not to make
contracts or reform them but to determine what the parties contracted to do.” Ash
Park, 363 Wis. 2d 699, ¶38 (citation omitted).

¶18 The plain language of the termination provision does not define or
set a standard for the degree of breach required to terminate the contract.
Although the provision does not specifically establish that a “material” breach is
required to terminate the contract, it also does not declare that the contract can be
terminated upon any breach, as the Niederkorns assert. It simply states that the
Niederkorns may terminate the contract “upon its breach.”7 The contract is
therefore silent regarding the degree of breach required to terminate the contract.

¶19 The contract’s failure to define the degree of breach required to
terminate the contract, however, does not render the contract language ambiguous.
Paragraph forty-two of the contract expressly states that the contract “shall be
governed by the laws of the State of Wisconsin.” As noted earlier, Wisconsin law

7
We note that the parties used significantly different language elsewhere in the contract,
where “any” breach was the relevant standard. Under the “Performance Bond” provision in
paragraph six, the performance bond must be applied to the actual damages incurred by the
Niederkorns “[u]pon breach of any condition of this Contract.” (Emphasis added.) This
difference in language further supports our conclusion that the contract does not expressly permit
termination upon any breach.

8
No. 2021AP281

requires that a party to a contract perform in accordance with the contract terms
unless the other party commits a material breach of the contract. See Ranes, 219
Wis. 2d at 57. The Niederkorns correctly observe that paragraph forty-two of the
contract is “a common choice of law provision” and that it does not bar
contracting parties from choosing their own contractual terms. They fail to
recognize, however, that the termination provision does not expressly alter the
degree of breach required to excuse their performance under the contract. Indeed,
the contract contains no language expressing an intent to avoid, or contract out of,
Wisconsin’s material-breach requirement for terminating a contract.

¶20 The contract therefore provided, pursuant to Wisconsin law, that the
Niederkorns could terminate the contract only upon a material breach of the
contract.8 Accordingly, the Kings’ breaches of contract, which the circuit court
found not to be material, were insufficient to justify the Niederkorns’ termination
of the contract.

II. The circuit court’s findings that the Kings’ breaches were not material

¶21 In the alternative, the Niederkorns argue that their termination of the
contract was justified because the Kings’ breaches of contract were material. The
Niederkorns contend that we should apply a de novo standard of review to the
circuit court’s determinations that the breaches were not material because neither

8
Even if the termination provision could be considered ambiguous, we generally
construe ambiguities in a contract against the party who drafted the contract. See Maryland Arms
Ltd. P’ship v. Connell, 2010 WI 64, ¶44, 326 Wis. 2d 300, 786 N.W.2d 15 (“The principle that
ambiguities are construed against the drafter is a ‘deeply rooted doctrine’ of contract
interpretation.” (citation omitted)). Accordingly, any ambiguities would be interpreted against
the Niederkorns because the Niederkorns, through their forester William Reynolds, selected the
contract and edited it.

9
No. 2021AP281

party is challenging the court’s underlying factual findings with respect to the
breaches of contract, and the question is therefore whether the breaches found by
the court satisfy the legal standard in Wisconsin for terminating a contract.

¶22 The Niederkorns, however, have not identified any legal authority
establishing that de novo review applies to the determination of whether a breach
of contract is material. To the contrary, Wisconsin courts have long recognized
that whether a party to a contract has committed a material breach is a question of
fact. See Volvo Trucks N. Am. v. DOT, 2010 WI 15, ¶50 n.28, 323 Wis. 2d 294,
779 N.W.2d 423 (“Whether a material breach of contract has occurred is a
question of fact to be determined by the fact finder.”); Ralph Gentile, Inc. v. State
Div. of Hearings & Appeals, 2011 WI App 98, ¶5, 334 Wis. 2d 712, 800 N.W.2d
555; Management Comput. Servs., 206 Wis. 2d at 184; Myrold v. Northern Wis.
Co-op. Tobacco Pool, 206 Wis. 244, 249, 239 N.W. 422 (1931) (“Whether or not
there is a material breach is, except in clear cases, a question for the jury.”).

¶23 We will not disturb a circuit court’s factual findings unless they are
clearly erroneous. WIS. STAT. § 805.17(2) (2019-20). Even if the evidence would
permit contrary findings, factual findings will be affirmed under the clearly
erroneous standard as long as the evidence would permit a reasonable person to
make the same findings. Royster-Clark, Inc. v. Olsen’s Mill, Inc., 2006 WI 46,
¶12, 290 Wis. 2d 264, 714 N.W.2d 530.

¶24 The Niederkorns’ material breach argument largely centers on their
assertion that the circuit court misunderstood the law regarding whether a breach
is material because “[i]t mistakenly believed that its task was to identify one
singular contract objective or purpose.” They therefore contend that the court
applied an improper legal standard when assessing the materiality of the Kings’

10
No. 2021AP281

breaches because it did not consider all of the essential objects and purposes of the
contract.

¶25 In determining whether a breach of contract is material, a contract
can indeed have more than one essential object or purpose. See Appleton State
Bank v. Lee, 33 Wis. 2d 690, 692-93, 148 N.W.2d 1 (1967) (“Before a party not
in default may be entitled to the relief of rescission[,] there must be so serious a
breach of the contract by the other party as to destroy the essential objects of the
contract.”); Management Comput. Servs., 206 Wis. 2d at 183; see also WIS JI—
CIVIL 3076 (2001). Beyond citing the circuit court’s determination as to the
essential purpose of the contract, however, the Niederkorns fail to identify any part
of the record showing that the court incorrectly believed a contract can have only
one essential purpose or object. In reality, the record tends to support the opposite
conclusion.

¶26 When reciting the applicable law, the circuit court stated: “[F]or a
material breach, the nonperformance must be so substantial and the breach so
serious so as to destroy the essential purpose of the agreement.” This statement
neither suggests the court believed a contract can have only one essential purpose,
nor is it inconsistent with prior precedent. See Ranes, 219 Wis. 2d at 57 (“For a
breach to be material, it must be so serious as to destroy the essential object of the
agreement.”). Furthermore, after discussing the law, the court determined that
“the essential purpose of this agreement is to have the Kings remove the overstory
and pay the Niederkorns for the products sold pursuant to the contract.”
(Emphasis added.) Although the court used the singular word “purpose,” the court
identified two essential purposes of the contract: (1) “to have the Kings remove
the overstory”—i.e., to cut and remove most of the timber; and (2) to “pay the
Niederkorns for the products sold pursuant to the contract.” The record therefore

11
No. 2021AP281

suggests that the court correctly understood that a contract could conceivably have
more than one essential purpose or object. For these reasons, we cannot conclude
that the court applied an improper standard or misunderstood the law regarding a
material breach of contract.

¶27 In arguing that the circuit court applied an improper legal standard,
the Niederkorns also contend that one essential purpose of the contract was for the
Kings to harvest the timber without unreasonably damaging the Niederkorns’
property or interfering with Niederkorns’ use of their property. The court,
however, never found that the contract had such an essential purpose. Rather, the
court found, as just noted, that the essential purposes of the contract were to
perform an overstory cut and to pay the Niederkorns pursuant to the contract.
That finding is not clearly erroneous, especially in light of the contract’s title of
“TIMBER SALE CONTRACT” and the contract’s opening provision stating that
“[t]he [Niederkorns] hereby authorize[] the [Kings] to enter upon the following
described lands … only for purposes of cutting and removing timber marked or
otherwise designated by the [Niederkorns].” (Emphasis added.)

¶28 To the extent the Niederkorns challenge the circuit court’s findings
that none of the Kings’ breaches were material, we conclude that those findings
are not clearly erroneous.9 As noted earlier, a breach is material if it is so serious
as to destroy the essential objects of the contract. See Management Comput.
Servs., 206 Wis. 2d at 183. Whether a breach is material involves the

9
We recognize that the Niederkorns “are not claiming the trial court got it wrong on the
facts as to a material breach of contract, they are claiming that the trial court got it wrong on the
law.” We nevertheless consider whether the circuit court’s findings are clearly erroneous to be
thorough and complete.

12
No. 2021AP281

consideration of several factors, “including the extent to which the injured party
will be deprived of the benefit that he or she reasonably expected, and the extent to
which the injured party can be adequately compensated for his or her loss.” 10 Id.
at 184 (citing RESTATEMENT (SECOND) OF CONTRACTS §§ 241, 242 (AM. LAW
INST. 1981)). Other relevant considerations might include “the likelihood that the
party failing to perform or to offer to perform will cure his failure” and “the extent
to which the behavior of the party failing to perform or to offer to perform
comports with standards of good faith and fair dealing.” See RESTATEMENT
(SECOND) OF CONTRACTS § 241 (AM. LAW INST. 1981). “[E]ven where such a
material breach has occurred, the non-breaching party may waive the claim of
materiality through its actions.” See Management Comput. Servs., 206 Wis. 2d at
184.

¶29 The circuit court found several breaches related to the Kings’
payments to the Niederkorns. Specifically, it found that the Kings breached the
contract by once improperly “paying pulpwood prices” for sawtimber, by failing
to provide mill slips, and by making a number of late payments. The court further
found, however, that none of these breaches were material. It recognized that the
incorrect payment of “pulpwood prices” was one incorrect payment out of many

10
The Niederkorns argue that “a material breach is one which deprives the
non-breaching party of a benefit which that party reasonably expected.” Although the
implications of this argument are not entirely clear, the Niederkorns appear to suggest that a
material breach occurs anytime a non-breaching party is deprived of a reasonably expected
benefit of a contract. To the extent that is the Niederkorns’ argument, we disagree. The
deprivation of a reasonably expected benefit of a contract is only one factor in determining
whether a breach is material. See Management Comput. Servs., 206 Wis. 2d at 184 (recognizing
that one factor in determining whether a breach is material is “the extent to which the injured
party will be deprived of the benefit that he or she reasonably expected”). Therefore, even if the
Niederkorns were deprived of a reasonably expected benefit due to the Kings’ breaches of the
contract, those breaches are not automatically deemed material breaches.

13
No. 2021AP281

payments. In addition, the court observed that the Niederkorns never requested
the mill slips or objected to the late payments prior to terminating the contract and
that all of the payments were eventually received.

¶30 These findings are not clearly erroneous because a reasonable fact
finder could determine that these breaches did not destroy the contract’s essential
purposes of providing an overstory cut and paying the Niederkorns pursuant to the
contract. The Niederkorns could be “adequately compensated” for the single,
incorrect payment, see id., which was insufficient by only $588, and they were
compensated for that amount as part of the damages awarded to them. In addition,
they arguably waived their claim that the late payments and the lack of mill slips
were material because they failed to notify the Kings of those issues as they
occurred and before terminating the contract based, in part, on those breaches. See
id. (“[T]he non-breaching party may waive the claim of materiality through its
actions.”).

¶31 The circuit court also found several minor breaches of the contract
related to the Kings’ operations on the property. In particular, the court found that
the Kings breached the contract by removing timber from the property during the
first four days of November 2016, by causing rutting on the property, by damaging
some pine trees, and by failing to communicate with the Niederkorns regarding the
use of slash as a “top road.” Again, however, the court found none of these
breaches to be material.

¶32 The circuit court found that the Kings’ operations during the month
of November did not materially breach the contract because they were isolated to
one area of the property and were limited to four days; the ground was too wet to
remove the timber at an earlier time; and removing the already-cut timber in

14
No. 2021AP281

November helped “mitigate loss for both parties.” The court also observed that
the rutting and use of slash were not material breaches because the summer and
fall of 2016 were “unusually wet”; the experts agreed that some rutting was
inevitable; the Niederkorns never objected to the rutting or the use of slash prior
to, or at the time of, the contract’s termination; the contract was terminated
midcourse, which prevented the Kings from cleaning up the property at the end of
the contract; and the remaining rutting and slash on the property could be
addressed through damages. Lastly, the court found that the damage to the pine
trees was not a material breach because the damage occurred in good faith and the
contract provided a specific remedy for trees that were improperly damaged.

¶33 Again, none of these findings are clearly erroneous. As the circuit
court recognized, the Niederkorns had adequate remedies available for the rutting,
slash, and damaged pine trees. In fact, the Niederkorns were eventually
compensated for these breaches in their damages award. In addition, the
Niederkorns never objected to the rutting and slash before terminating the contract
midcourse, which ultimately constrained the Kings’ ability to fix those conditions
during the contract period. Furthermore, by removing timber from the property in
early November 2016, the Kings mitigated losses for the Niederkorns because the
already-cut timber would have decreased in value had it remained on the property
until the end of December. Under these circumstances, a reasonable person could
find, as the court did, that these breaches were relatively minor and were not so
serious as to “destroy” the contract’s essential purposes of providing an overstory
cut and paying the Niederkorns for the timber cut.

¶34 The circuit court also considered the Kings’ breaches collectively
and found that they did not amount to a material breach because “there’s ways to
address those through the contract or through damages, and I don’t find that those

15
No. 2021AP281

breaches collectively rise to the level of destroying the essential purpose of the
contract.” This finding was not clearly erroneous because, as the court observed
throughout its decision, the Niederkorns failed to notify the Kings about a number
of breaches before terminating the contract, and the Niederkorns could be, and
were, adequately compensated for many of the breaches. Although the
Niederkorns suggest that they had no choice but to terminate the contract because
their profits were being “figuratively swept away by damages,” they fail to
recognize that they could be, and ultimately were, compensated for those damages
in the final judgment.

¶35 Finally, even if we could independently review the circuit court’s
findings that the breaches were not material, and even if we assumed that the
contract had an essential purpose of completing the harvest without damage to, or
interference with, the Niederkorns’ property, we would conclude that the breaches
were not “so serious” as to “destroy” that essential purpose of the contract. See
Management Comput. Servs., 206 Wis. 2d at 183 (citation omitted). All of the
property damage caused by the Kings seems to have occurred in good faith and in
pursuit of performing under the contract. The Kings were also never allowed to
complete their work under the contract, which prevented them from addressing the
Niederkorns’ property damage concerns during the contract period. Nonetheless,
the Niederkorns had adequate contractual remedies for the property damage and
were ultimately compensated accordingly. In addition, the Kings’ operations in
November were limited to a few days, and their actions benefited the Niederkorns
by preventing the already-cut timber from diminishing in value. In short, we agree
with the court’s findings that none of the Kings’ breaches—individually or
collectively—were material.

16
No. 2021AP281

By the Court.—Judgment affirmed.

Not recommended for publication in the official reports.

17