Coates v. Buck, 93 Wis. 128

Coates v. Buck

93 Wis. 128 | Wis. | 1896

Cassoday, O. J.

It is difficult to perceive upon what theory the verdict was directed in favor of the defendant. The defendant admits that he made the order December 20, 1893,. after he had inspected samples of the plaintiff’s needles. The’ evidence on the part of the plaintiff tended to prove that the needles shipped to the defendant by the plaintiff were the same as to quality, kind, and description as the sample card sent him before the goods were ordered, and that the needles were all in good order and condition when so shipped. The defendant had been buying and selling needles for twenty-three years. There is no evidence that the needles shipped to the defendant did not correspond with the samples. The’ next day after he received the needles he wrote the plaintiff to the effect that he had opened the package and taken out 500 papers, which he would retain, but did not want the-balance. In that letter he finds no fault with the quality, but only with the quantity. The same is true of his letter-written six days afterwards, and in which he, among other things, in effect said that he did not dispute but what the-.goods were shipped as stated in the plaintiff’s letter of two-*131days before; that he had acknowledged in his letter to the plaintiff that the error was made by himself, unintentionally; that his error consisted in ordering 2£ thousand papers of needles, instead of 2|- thousand needles; that he saw the mistake after he saw the bill of needles; that he would pay for the 500 papers, and the freight both ways on the balance, if the plaintiff would take them back. Twenty days after the defendant had received the needles, he wrote the plaintiff to the effect that he had told its representative that the goods were worthless, and he presumed he had so reported to the plaintiff. True, there is evidence, given under objection, tending to prove that many of the needles so received by the defendant were poor and worthless; but no breach of warranty was pleaded, and, even if there had been, the case could not have been properly taken from the jury on the score of quality.

As indicated, the quantity shipped was ordered by the defendant in writing, December 20, 1893, and was again carefully checked all over by the defendant, and by him stated to be correct in every particular, December 26, 1893. The order, being in writing, is, in the absence of fraud or mistake, conclusive upon the defendant as well as the plaintiff as to the quantity ordered. Herbst v. Lowe, 65 Wis. 320; Ball v. McGeoch, 81 Wis. 171; Custeau v. St. Louis L. Imp. Co. 88 Wis. 315. dSTo fraud is alleged in the answer; and there is no pretense that any fraud was practiced upon the defendant. The only claim or pretense is that the defendant, by some mistake not explained nor accounted for, ordered a good many more needles than he really wanted, and directed them to be put up in papers with his card or advertisement upon them. But the answer entirely fails to state, and the evidence fails to prove, facts which would authorize a reformation of the written order. It is confessed that there was no mutual mistake, but at most some error or misconception on the part of the defendant making the order. That is in*132sufficient to justify a reformation. De Voin v. De Voin, 76 Wis. 66; Clark v. Fairchild, 22 Wend. 576; Miles v. Stevens, 3 Pa. St. 21, 45 Am. Dec. 621; Belt v. Mehen, 2 Cal. 159, 56 Am. Dec. 329; Paget v. Marshall, 28 Ch. Div. 255; Baltzer v. R. & A. R. Co. 115 U. S. 634.

By the Gowrt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.