13 Wis. 429 | Wis. | 1861
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This was an action upon a' note given by the defendants to the plaintiff. The defendant set up, by way of counter-claim, that the note was given for putting a water wheel into the defendants’ mill, which was agreed to be put in in a good and workmanlike manner, and warranted to perform in a certain way; and that it was not done in a workmanlike manner, and did not perform as warranted, whereby they were damaged, &c. Evidence on this point was introduced by both parties, and the court instructed the jury, that before the defendants could recover any damages for a breach of the warranty or expenses for repairs to make the work as warranted, they must show that they had first informed the plaintiff or his agent, of the defect, so as to give him an opportunity to remedy it, provided the plaintiff or his agent was “within reach or a convenient distance of the defendants.”
This was erroneous. The right of a defendant in an action on a promissory note, to set up in reduction of damages a breach of warranty in respect to the thing sold or the work done, for which the note was given, we consider established in this country. Reab vs. McAllister, 8 Wend., 120; Edwards on Bills and Notes, p. 333-4, and notes. And in the absence of any agreement to that effect by the parties, we know of no rule of law requiring a party for whom work has been done, and warranted to be of a particular quality, upon a breach of the warranty, to request the warrantor to do it over again, before he is entitled to his damages. If he is bound to give him such opportunity once, why not twice, if it fails again ? Why is he not bound to continue to let the warrantor work at the article as long as he may be willing to attempt to make it what he agreed to ? His right to have one opportunity to do it over again after having once completed it, can only be sustained on the hypothesis that the agreement is not absolutely that the work shall be as warranted in the first instance, but that if it is not so, he will make it so on having a further opportunity. And if this was the agreement, it would require that he should be allowed to make the attempt again. But this is not the agreement of warranty. That is, that the work when completed
That is for the jury to do upon proper instructions, and as they were erroneously instructed, the judgment must be reversed, with costs, and the cause remanded for a new trial.