Fintel v. Cook

88 Wis. 485 | Wis. | 1894

Oassoday, J.

It appears from the evidence, pretty clearly, that dune 8, 1S9Ü, the defendant was attending court as a juryman; that his farm at the time was beiDg worked by his two minor sons; that on that day the sons made a contract for the purchase of the machine for the price named, conditioned upon its doing good work; that one of the sons thereupon went and got the machine, and commenced using the same, planting corn on the defendant’s farm; that when the son got the machine one of the plaintiffs went with him, and started the machine, and planted between half an acre and an acre, and that it did the work well; that it ivas agreed that the sons would notify the plaintiffs if it did not do good work, but that no such notice was ever given; that the machine continued to do good work, and that the sons repeatedly expressed themselves satisfied with it; that, within two days after the machine was so taken to the defendant’s farm, the defendant knew the machine was there on trial; that a week or so after getting the machine, as mentioned, the boys used it planting com f-or their uncle; that they finished the planting of their •corn about June 16, 1S92. The defendant and his sons deny several of the facts stated, and testified to the effect that they could not tell whether the machine worked satisfactorily until they ascertained whether the corn grew; and the defendant himself testified that, as soon as he saw what kind of work the machine did, he told his boys to instruct the plaintiffs that he would not keep the machine. Accordingly, one of the sons wrote the plaintiffs, under date of July 5, 1S92, to the effect that the machifie had not given satisfaction, and that they would return it as soon as they should have the time. That letter was signed “ 0. N. Cook and Son.”

It is very apparent that the sons acted as the agents of the defendant in making the purchase. A principal who, after knowledge of the terms of a sale or purchase made' by the agent, does not disaffirm, but accepts and enjoys all the benefits thereof, cannot afterwards deny the authority of the agent to make the same upon the terms agreed upon. Parish v. Reeve, 63 Wis. 315; Strasser v. Conklin, 54 Wis. 102; Morse v. Ryan, 26 Wis. 356; Burke v. M., L. S. & W. R. Co. 83 Wis. 415. The defendant retained the machine for about a month before attempting a disaffirmance. That was certainly an unreasonable length of time to retain the machine for the purpose of testing it. Such retention and the use of the machine as mentioned were a waiver of any right to return the same. Palmer v. Banfield, 86 Wis. 441.

The judgment in the justice’s court, exclusive of costs, did not exceed §15; and as there was no affidavit, as prescribed by sec. 3768, E. S., the appeal was necessarily heard in the county court on the original papers and the return of the justice. In such a case no other bill of exceptions is necessary on appeal to this court. Sec. 3767, E. S. That, however, does not prevent this court from ordering an affirmative judgment in favor of the plaintiffs, according to the weight of the evidence and the justice of the case. Sec. 3769, R. S., as amended by ch. 216, Laws of 1891; Silvernail v. Rust, ante, p. 458.

By the Court.— The judgment of the county court is reversed, and the cause is remanded with direction to enter judgment in favor of the plaintiffs, and against the defendant, for the amount of the agreed price of the machine,, and interest from June 8, 1S92.