67 Wis. 129 | Wis. | 1886
The respondent brought an action against the appellants to recover the value of a quantity of barb wire sold by the respondent to the appellants. The sale and delivery of the wire are admitted by the appellants; also the price agreed upon. The appellants then set up, by way of counterclaim, that upon such sale the respondent warranted said wire so sold to them to be the best quality of steel wire and as good as any in the market, and then alleged various breaches of said warranty, and claimed damages in the sum of $350.'
On the trial, in order to establish their counterclaim, the appellants showed that the wire ordered by them from the respondent was to be the best quality of steel wire, and also gave evidence tending to show that such wire was defective in various respects; that the wire was improperly spooled, so that it could not be removed from the spools without great difficulty; that the wire was not properly twisted, the barbs were imperfect, uneven in length, and not properly fastened to the wire; and that the wire itself was not of sufficient strength to bear the tension necessary to properly fasten it to fence posts. It was also shown that the wire was delivered to the defendants in the fall, and not used or sold by them until the next spring, when they first discovered the defects complained of.
The court charged the jury, among other things, as follows: “ On the part of the plaintiff it is claimed that the difficulty complained of on the part of the defendants with reference to this wire was visible; that anybody in examining it could see the defects that the defendants complained -of. If that is true, and you so find from the testimony, : then, even if there had been an express warranty as to that - particular defect, it would have been of no greater force or effect than the implied warranty. They would stand upon equal footing. An implied warranty is simply a warranty that.the article sold, when there is no express warranty, is
To this instruction the defendants duly excepted. It is insisted by the learned counsel for the respondent that this exception is not sufficient to raise the question as to the correctness of the instruction as to the duty of the purchasers to examine the goods purchased and notify the vendor within a reasonable time if they take objection to the quality of the goods delivered as to which there is only an implied warranty, and that they waive such implied warranty unless such examination and notice be given. ¥e are disposed to hold the exception sufficient. The purpose of the instruction, as a whole, was to give the jury what the learned judge considered the law applicable to the case of a purchase of goods under an implied warranty as to their
‘ It seems to us that the evidence in this case fails to show that the defects complained of in the wire by the defendants, were such as are “patent and obvious,” within the meaning of the rule laid down by this court in the two cases above cited; but they are more like the defects complained of in the case of Getty v. Rountree, 2 Pin. 380; Fisk v. Tank, 12 Wis. 276; Woodle v. Whitney, 23 Wis. 55; Boothby v. Scales, 27 Wis. 626; Bonnell v. Jacobs, 36 Wis. 59; Morehouse v. Comstock, 42 Wis. 626; Warder v. Fisher, 48 Wis. 338. Some, if not all, of the defects in the wire complained of were, to a greater or less extent, latent defects, and would not, in the ordinary course of business, be
But the charge is erroneous in making a distinction as to the duty of the purchaser when he purchases with an implied •warranty and his duty when purchasing upon an express warranty. The instruction says to the jury that, when the purchaser buys the goods upon an implied warranty that they are merchantable and fit for the purposes for which they are purchased, he must in all such cases search out such defects within a reasonable time, and that a neglect to search for the defects, and, when found, to notify the vendor of the same within a reasonable time after the purchase, is a bar to the purchaser’s right to recover for any breach of such implied warranty. This, it seems to us, is clearly contrary to the rule of this court as stated in the cases last cited, and which rule the chief justice, in the case of Locke v. Williamson, supra, says is not intended to be changed by what is said in that case. In Bonnell v. Jacobs, supra, the circuit court instructed the jury “that if there was a defect in the machine itself it would have been the duty of the defendant in this case to give Mr. Bonnell notice that the furnace was -defective and to come there and perfect or take it away in a reasonable time. If he did not give such notice, and kept it, he would be deemed, in that case, to have waived any claim for thé defect.” And this couyt said: “The instruction is erroneous. The law is well settled in this state, by repeated adjudications of this court, that in case of a warranty, direct or implied, when the article purchased proves defective or unfit for the use intended, the purchaser may, without returning or offering to return it, and without notifying
The cases in 40 Wis. and 42 Wis. above cited do not change the rule as above stated, except in a case where the vendee, at the time of receiving the goods purchased, has actual knowledge of the defects complained of, or the defects are open and palpable and the vendee has a full opportunity for examination. In such case the law charges him with such knowledge; and if, notwithstanding such known or open and palpable defects, he accepts the goods, without notifying the vendor that he does not accept them as a fulfilment of the contract, he is held to have waived his right to recover for such defects.
As said above, we do. not think the evidence brings the case within the rule laid down in the cases of Locke v. Williamson and Morehouse v. Comstock, supra, and that the instruction of the learned county judge was clearly erroneous. Because of the error in the instruction the judgment must be reversed.
By the Court.— The judgment of the county court is reversed, and the cause is remanded for a new trial.