67 Wis. 392 | Wis. | 1886
The following opinion was filed October 12, 1886:
About the 5th of July, 1881, the respondent purchased of the appellant a machine called “ Osborne’s Self-binding Harvester,” at the agreed price of $210, and paid $100 on the same, and gave two notes for the balance, one for $35, dated September 8,1881, payable the 1st day of October, the same year, and the other for $135, of the same date, payable the 1st day of October, 1882, at seven per cent, interest. Appended to each note there was a waiver of “ all relief from valuation, appraisement, stay, exemption, and homestead laws, and all defense hereto.” The machine was purchased on the following written warranty: “All our machines are warranted to be well built, of good material, and capable of cutting, if properly managed, from ten to fifteen acres per day. If on starting a machine it should in any way prove defective and not work well, the purchaser shall give prompt notice to the agent from whom he purchased it, and allow time for a person to be sent to put it in order. If it cannot then be made to do good work, the defective part will be replaced, or the machine taken back and the payments of money or notes returned. Keeping the machine during harvest, whether kept in use or not, without giving notice as above, shall be deemed conclusive evidence that the machine fills the warranty.”
The actioti was brought on the notes. The answer alleged .such consideration, and set up the warranty, and alleged that upon the trial of said machine in the harvest of 1881 it proved defective and worthless for the purpose for which it was purchased, and would not do good work, and was not well built, and that the defendant gave the plaintiff’s agent,
The evidence tended strongly to show that the facts set up in the counterclaim were true, and that the defendant notified the plaintiff to take back the machine for the rea
In this case there appear to have been thirty requests by the plaintiff to specially charge the jury, thirty-eight questions propounded for a special verdict, two hundred objections and exceptions, and sixty-eight assignments of error. Inasmuch as nearly all of these exceptions are based upon a misapprehension of the terms of the warranty and of the undisputed evidence in the case, only such as are clearly applicable to the case will be considered.
1. The warranty does not require a return of the machine by the defendant. The language is that “the defective part will be replaced or the machine taken baoJc”
2. The condition is that “keeping the machine during harvest, whether kept in use or not, without notice as above [prompt notice of the defect], shall be deemed conclusive evidence that the machine fills the warranty.” The fact was undisputed that such prompt notice of the defect was given, and repairs were attempted at once, during the first harvest, and continued from time to time, as we have above seen. The exceptions, therefore, based upon keeping the machine without notice are not in the case.
4. Exception was taken to the admission of evidence as to the value of the machine in 1881 and also in 1882. This was proper, because the plaintiff had made attempts from time to time in both years to improve and repair the machine, and all such changes affected the value of the machine to the defendant by lessening or increasing or not materially affecting it. Such was the rule laid down in Melby v. Osborne, 33 Minn. 492, another case like the present except that it was a direct action on. the warranty.
5. Exception was taken to the refusal of the court to allow proof of the value of the iron in the machine. This ruling was proper, because the machine was an entirety and it would be improper to parcel it. The material question was, What was the value of the machine generally, in its then con.
6. Exception was taken to the allowance of the question “ whether the machine was capable of cutting and properly binding, if properly managed, from ten to fifteen acres per day, either in 1881 or 1882,” as not being within the warranty. The reason given for the objection was that the warranty was only for the clotting and not the binding. The machine was a “self-binding-harvester,” and nothing less, and this is too clear for argument.
In respect to the numerous exceptions taken to the refusal of the court to submit to the jury the special questions presented by the learned counsel of the plaintiff, it is sufficient to say that the questions submitted by the court embraced all the material controverted facts, and were too numerous for that purpose, if they Avere at all objectionable. It does not appear that they were in any respect deficient. The cause was very ably and fully tried by the learned counsel on both sides, and nothing appears to have been overlooked which could have any possible relation to the issue. The evidence was very strong and preponderating in favor of the verdict rendered, and the judgment appears to be just.
By the Court.— The judgment of the circuit court is affirmed.
A motion for a rehearing was denied December 14,1886.