27 Wis. 626 | Wis. | 1871
It may reasonably be doubted whether the first answer of the defendant was not sufficient to admit proof of an implied warranty. But whether it. was or not, there was no error in permitting the amendment. The court was satisfied, and no doubt properly so, notwithstanding the affidavit of the plaintiff Platt, that it was not a case of surprise or injustice to the plaintiffs to allow it. It was obvious, as to the implied warranty which it was the object of the amended answer to set up, that the plaintiffs had all the testimony before the court and jury of which that issue was susceptible. They could rebut or disprove the implied warranty only by showing, either that they were not the manufacturers of the mill, or that Can-field was not their agent with authority to sell it, or that there was a special agreement at the time of sale
The other exceptions, except that to the order overruling the motion for a new trial, relate to the instructions given to the jury, and to the requests to charge which were refused. Some of these will best be considered with reference to certain general principles which govern in cases of this kind. It is well settled that where the manufacturer sells an article for a fair price, the law implies a warranty that it is reasonably fit for the use for which it is manufactured or purchased. Walton v. Cody, 1 Wis. 420; Misner v. Granger, 4 Gilman, 69; Merriam v. Field, 24 Wis. 640; Jones v. Bright, 5 Bing. 529 (15 E. C. L. 529); Brown v. Edgington, 2 Man. & Gran. 279 (40 E. C. L. 371). In Jones v. Just, L. R. 3 Q. B. 202, the rule is stated by MelloR, J., on the authority of the two cases last cited, that “where a manufacturer or a dealer contracts to supply an article which he manufactures or produces, or in which he deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, there is in that case an implied term or warranty that it.shall be reasonably fit for the purpose to which it is
These principles seem to dispose of the two first requests to charge, and to show that there was no error in refusing them. The buyer of a manufactured article like a fanning mill or other similar machine, having no previous skill or experience, cannot ascertain from mere inspection whether it will operate well or not, or whether it is reasonably suited to the purpose for which it was made and to which he intends to apply it. Nothing short of an actual trial or experiment will determine those questions. As well might an unskilled person be required to ascertain and take notice at his peril whether a watch will keep time by looking at its cases or machinery and the parts of which it is composed, when in treaty with the manufacturer for it, and when the manufacturer knows it is wanted to keep time, and sells it for that purpose, and receives a fair price for a good article. It would be a strange doctrine to apply to such a case, if the watch turned out upon trial to be worthless, that the purchaser’s eyes were his guide, and he himself the judge from mere inspection, and that the manufacturer could retain the price, giving nothing
By the third request the court was, among other propositions, asked to charge that “ if the jury in this case should have reasonable doubts from the evidence whether any warranty were in fact made, or what the terms of such warranty were, if any was made, then you will find for the plaintiffs.” The reference here was to the alleged special warranty. The rule of the criminal law giving the accused the benefit of any “reasonable doubts” which the jury may have, is well known. That rule, however, does not ordinarily extend to civil actions; and we are not aware of any principle upon which the plaintiffs in this action could claim or were entitled to the benefit of any reasonable doubts in the minds of the jury, more than the defendant. The request was properly denied.
The fourth request to charge was erroneous, because it omitted 'entirely all ground of liability upon the implied warranty. If the jury found no special warranty, or no breach of it, they were required to find for the plaintiffs. It would have been erroneous so to have instructed.
Of the general charge it is unnecessary particularly to speak, as its correctness in most respects is vindicated by what has already been said. It appears that the alleged special warranty consisted in the affirmation of the agent Canfield, who sold the mill,
The court further charged the jury as follows: “ The defendant has introduced evidence to prove he has offered to return the mill to the plaintiffs. In a case of a breach of the warranty in reference to matters which are the condition of the purchase, he had a right to do this within a reasonable time; and such offer would be a complete bar against the plaintiffs’ recovery to any extent. Whether such offer of return was made, and made within a reasonable time
The proof in this case was, that the defendant did not offer, to return the mill until more than six months after he had purchased and taken it into his possession, nor until after the note given for it, and upon which this action is brought, became due. It was likewise shown that immediately after the purchase
In this case it appears, therefore, not only that the defendant had ample time, opportunity and conveniences for testing the machine, but that he actually did so, and learned its defects long before he offered to return it to the plaintiffs. Whether, under any circumstances, a purchaser might retain a mill, or machine, or goods or chattels of any kind, so long as six months or more, without return or offer of return to the seller, and without waiving the right still- to make the offer, is a question not now requiring consideration. Such delay, to he tolerated, would without doubt require explanation and the proof of facts and circumstances excusing it, or showing it was necessary and proper; of which we have no evidence in this case.
By the Court. — The judgment of the circuit court is reversed, and a venire de novo awarded.