Fairfield v. Madison Manufacturing Co.

38 Wis. 346 | Wis. | 1875

Lyojst, J.

The first question to be considered is, Does the testimony tend to prove all of the facts essential to constitute a cause of action ? It was evidently intended by the parties, when they entered into the original contract, that the title to the machine should not vest in the plaintiff until he had tried it. If upon trial it fulfilled the terms of the. warranty, or if the plaintiff used it in reaping more than two days, the title passed to the plaintiff. After thus using the machine two days the plaintiff would be estopped from asserting a breach of the contract of warranty, except for hidden defects of materials. After the title thereto should thus vest in the plaintiff, he would be liable for the price of the machine, and the defense that there were breaches of the contract of warranty (except as aforesaid), would thereupon cease to be available to him. Hence, when the plaintiff had tried the machine (using it less than two days), found it defective and requested the agents of the defendant to take it away, the title had not passed to him, and he was under no legal obligation to keep the machine or pay for it.

But the testimony tends to show that the agents of the defendant did not take the machine when so requested and when it belonged to the defendant, but prevailed upon the plaintiff to purchase the machine and give his notes for the price, under the agreement, which -they had authority to make, that if the machine did not fulfill the original warranty, the plaintiff was not to pay for it. If such are the facts (and thus far there is no proof to the contrary), the plaintiff became the purchaser • of the machine with warranty of its qualities and capacity as specified in the original contract, but without the conditions therein contained as to testing the machine, or as to the effect of two days use thereof. By the new arrangement these conditions were necessarily expunged from the contract, and all that was left of it was an ordinary warranty of the article sold,- for a breach of 'which the plaintiff might avail himself of the ordinary remedies. That is to say, it was competent for him to return or offer to return the defective machine within a reasonable time, and recover back the consideration paid therefor, or, at his option, to keep the machine and recover damages for the breach of the contract of warranty. Boothby v. Scales, 27 Wis., 638; Bonnell v. Jacobs, 36 id., 59, and cases cited. The plaintiff has chosen the latter remedy, and we are of the opinion that the testimony tends to prove that he is entitled to recover. The question under consideration must, therefore, be answered in the affirmative.

2. The record does not disclose the grounds upon which the learned circuit judge ordered the nonsuit, but it is stated in one of the briefs that it was ordered on the ground that there is a fatal variance between the allegations of the complaint and the proofs. The cause of action made by the complaint is for breaches of the original contract of warranty. The testimony tends to prove the contract as stated in the complaint, and breaches thereof as therein alleged. We fail to find any material variance between the complaint and testimony. On the contrary, we are satisfied that the complaint states a cause of action, and that the testimony tends to prove all of the material allegations therein contained.

3. The action was commenced by attachment before a justice of the peace, and there was no personal service of process. The only property attached was the machine in controversy, which was confessedly the property of the plaintiff, and not of the defendant. It is claimed that an attachment does not lie for unliquidated damages, and that there was no valid service of the writ, and hence the court had no jurisdiction, and that the nonsuit was proper for that reason, if for no other. "The defendant appeared before the justice, pleaded to the merits, and went to trial. It afterwards appealed, and again litigated the case on the merits in the circuit court. These proceedings by the defendant cured all defects in the process and service thereof, and gave the court jurisdiction to try and determine the controversy. Blackwood v. Jones, 27 Wis., 498. Hence it is unnecessary to consider whether an attachment may properly issue in such cases, and, if so, whether there has been any valid service of the process in this case.

Failing to find any satisfactory grounds for the nonsuit, we must reverse the judgment of the circuit court and award a new trial.

By the Court. — It is so ordered.

Colb, J., took no part in the decision of this cause, being a stockholder in the defendant company.