110 Wis. 263 | Wis. | 1901
It appears from the record that July 16, 1898, the plaintiff sold and delivered to the defendant a rebuilt second-hand separator, and a ten-horse Star engine on trucks, with the usual' fixtures and extras, for $650, of which $200 was paid down in cash, and three notes, of $150 each, secured by chattel mortgage on the property, taken for the balance; that after using the same for some time the engine was found to be unsatisfactory to the defendant, and so it was returned, and a rebuilt G-aar-Scott engine taken in its place, with an agreement on the part of the defendant to pay to the plaintiff $300 additional, evidenced by three promissory notes of $100 each, all the six notes amounting to $750 to be secured by chattel mortgage on the property. "When the first note for $150 became due, the defendant made default and refused payment, which had been demanded, and thereupon the plaintiff demanded possession of the property covered by the mortgage, which the defendant refused to give. May 3, 1899, the plaintiff, as such mortgagee, commenced this action of replevin for the property covered by the second mortgage.
The defendant, by way of answer and counterclaim, denied certain allegations of the complaint, and admitted others; to the effect that he purchased the first machinery in July, 1898, and made the cash payment and gave the three notes and chattel mortgage, as stated, but alleged that the engine was to be rebuilt, and was warranted and guaranteed to be in perfect working order, and that it would perform the work of running the separator and attachments, and would be perfectly satisfactory; that the defendant purchased such property relying wholly on such warranty and guaranty; that it was not rebuilt as agreed, but was fraudulently covered with a thick coat of paint to conceal the rust and worn condition; that it was so old, worn out, rusted, and dilapidated and out of repair as to be impossible of use; that at the request of the plaintiff the defendant
At the close of the trial the jury returned a special verdict to the effect (1) that there was a breach of the plaintiff’s warranty upon the second engine delivered to the defendant; (2) that the second engine, as delivered to the defendant, wras Worth $275; (3) that the second engine would have been worth, had it been as warranted by the plaintiff, $750; (4) that the defendant’s damages by virtue of his loss of time and expenses for repairs in running the second engine were $85.25; (5) that the defendant’s damages by reason of loss of time and expenses for repairs in running the first engine were $228. Upon such verdict the court adjudged and decreed that the plaintiff deliver to the defendant the notes and mortgage described in the complaint, and the same were thereby adjudged paid and canceled; that the plaintiff return to the defendant the property replevied therein; that the defendant have and recover of the plaintiff the amount of $2.45, by which his damages exceeded the amount of the plaintiff’s notes at the time of the seizure; that the defendant have and recover of the plaintiff his costs and disbursements herein, taxed at $83.83; that, in the event that the plaintiff shall fail to return the property to the defendant within thirty days after the service of notice of the entry of this judgment, the defendant have and recover of th’e plaintiff the additional sum of $475, which is hereby found and adjudged by the court, upon the evidence adduced herein, to be the value of the said property at the time it
As indicated in the statement, the plaintiff, as mortgagee, brought this action of replevin by reason of the defendant’s default in payment of a part of the purchase price of the machinery covered by the mortgage. The right to maintain such an action is undisputed. Gage v. Wayland, 67 Wis. 566; Rice v. Kahn, 70 Wis. 323; Hill v. Merriman, 72 Wis. 483. Of course, the plaintiff’s special interest in the property is limited by the amount of the mortgage debt. Gage v. Allen, 84 Wis. 323.
The defendant, by way of counterclaim, sought" to extinguish or reduce such special interest by alleging damages for the breach of warranty on his purchase of the engine covered by the mortgage, and also damages for loss of time and expenses in trying to operate the engine returned to the plaintiff, and for which the engine covered by the mortgage was, in part, taken in exchange. Such counterclaim arose out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim, and is connected with the subject of the action, within the meaning of the statute, especially as the plaintiff is a nonresident. Subd. 1, 3, sec.' 2656, Stats. 1898.
The statute provides that, “ in an action of replevin, if the property have not been delivered to the plaintiff, or the defendant by his answer claim a return thereof, the jury shall assess the value of the property if their verdict be in favor of the plaintiff, or if they find in favor of the defendant that he is entitled to a return thereof, and may at the same time assess the damages, if they are claimed in the complaint or answer, which the prevailing party has sustained by reason of the detention or taking or withholding such property.” Sec. 2859. Here the defendant, by his answer, did claim
Counsel for the plaintiff contends, in effect, that the taking back of the old engine by the plaintiff, and delivering
Error is assigned because the court allowed the defendant to recover damages for the loss of time and expenses in trying to make the first engine work,— especially for the length of time indicated. But it is alleged in the answer, in effect, that by the request of the plaintiff the defendant continued to try to use that engine, and to put and keep the same in repair, and that he did so upon the plaintiff’s promise to make the matter right and make good such loss of time and damage. There appears to be some evidence to prove such allegations. The same is true, to a certain extent, as to the second engine. Undoubtedly, it is competent to allege and prove special damages arising directly out of special circumstances. C. Aultman & Co. v. Case, 68 Wis. 612. The general rule as to the measure of dam
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.