12 Wis. 276 | Wis. | 1860
By the Court,
The appellant’s application to the court to compel the respondent to elect upon which of the claims stated in his complaint he would proceed, and to
The deposition of the defendant Verleclc was properly admitted. The want of a venue or statement of the place where it was taken, either in its margin or the certificate of the commissioner before whom it was taken, does not invalidate it. It is said that without such statement perjury cannot be assigned upon it. The authorities cited by the respondent’s counsel, clearly establish the contrary. They show that, upon a trial for perjury, when the venue is wrongly stated in the [affidavit or deposition, such written statement may be disproved, and the true place of administering the oath may be shown by parol testimony. Such recital is not so much a part of the deposition or affidavit as to make it conclusive, but is prima facie evidence merely. A fortiori the true place may be shown where there is no recital. King vs. Emden, 9 East, 437; Rex vs. Spencer, 1 Carr. & Payne, 260 (11 E. C. L., 384). Eor all ordinary purposes the place of taking sufficiently appears on the face of it and the accompanying papers. In this respect it is in strict compliance with the rule (61 old Rules) which requires the return to state the time when the testimony was taken; but makes no reference to the place where it was taken. The objection that the deposition was reduced to wilting by the deponent, instead of the commissioner, is not supported by the authorities cited. They only establish what is alike consistent with reason and justice, that depositions to be admissible, must be taken in the regular course of judicial examination — that the witness
The objection that a part of the deposition is in the handwriting of the respondent, is unfounded in fact. The exhibits or papers annexed, strictly speaking, form no part of the deposition. The deposition, that is, the oral testimony of the witness as taken and reduced to writing, may be admitted, and the exMbits, if there be any thing in their character wMch renders them incompetent, may be excluded. The exhibit marked “ B,” being a copy of the original contract, the non-production of wMch was not sufficiently accounted for, was improperly admitted. As to the other ex-Mbits, there seems to have been some confusion of ideas, owing to the mixed relation of party and witness, in which
The appellant, by his failure, within the time prescribed by law for an answer, to deny, by affidavit, the existence of the partnership as alleged in the complaint, in accordance with the provisions of sec. 90, chap. 98, Statutes of 1849 (sec. 98, chap. 137, Statutes of 1858), must be deemed to have admitted it. The statute declares that, in the absence of such denial, such averments shall be taken to be true. This court (Whitman vs. Wood, 6 Wis., 676) has so decided; and agreeably to that decision it only remained for the respondent to prove the making of the contract by the firm.
The only other question material to be noticed before we come to the merits of the controversy, is that of variance, which was raised on the motion for a nonsuit. It consists in the pleader’s omission to allege in the complaint a part of the contract by which it was agreed that if the work should in any manner fail to answer the purposes intended or prove defective, .on a trial of twenty days, under an engineer of Yerbeóle's approval or furnishing, it was to be made good by repairs of defects. The contract, in all other respects, is stated truly. Tinder the system of pleading and practice which prevails at the common law, there can be little doubt that this failure to prove the contract as laid would be fatal. But under the system now established by law, more liberal as well as more just rules
Many of the principles applicable to the merits of this case, have been heretofore settled in this court, and it will, therefore, be unnecessay for us to consider them with reference to the adjudications of other states. In the case of Getty et al. vs. Rountree et al, 2 Chandler, 28, the following points were decided:
1. That in executory contracts to furnish articles for a specific purpose, especially by manufacturers, there is an implied warranty that the article delivered shall answer the purpose for which it was designed, inasmuch as the purchaser has not an opportunity of inspecting or testing it;
2. That in case of a warranty, direct or implied, where the article purchased proves defective or unfit for the use intended, the purchaser may, without returning or offering to return it, and without notifying the vendor of its defects,
These points were fairly raised, and, as we think, correctly decided. There was another point, however, not involved in the case, upon wMch the court attempted to rule, to which we do not wish to give our unqualified assent. It was said that where there is a warranty but no fraud, the vendee is not entitled, against the will of the vendor, to return the article and recover back the price paid; that in such case his only remedy is by suit for damages, or by’'recoupment, in case he is sued for the purchase money. As applied to the facts of that case, provided the court had been called upon to determine whether the defendants had the right, at the time the action was commenced, to return the pump about which the suit arose, such decision might have been correct. There is, however, much reason for saying, and many respectable authorities hold, in respect to executory contracts particularly, that in addition to the remedies above stated, the vendee may, in case the warranty be not complied with, altogether refuse to receive the article; or may take and keep it for such time only as may be necessary for a fair examination, and then return it on discovering its defects; in wMch case he is not considered as having received it at all; and in either case, if he has paid for the same, may sue for- and recover back the price. See note to Cutler vs. Powell, 2 Smith’s L. C., 5th ed., page 32, and cases there cited. Upon this point we wish to express no opinion. We desire merely to reserve it. It was entirely outside of the case then before the court, and is equally so now; and, therefore, could not be adjudicated in either. No return, or offer to return the article purchased was. there made, and no rights thereupon claimed; and the same is true here. With this exception, the decision meets our entire approval. The opinion exhibits a clear understanding and just discrimination of the authorities, and renders an examination of them here, upon the points properly determined, entirely unnecessary. This disposes of a large number of exceptions taken by the appellant’s counsel, not necessary to be enumerated here, which are founded
This case is not analagous to those cases, to some of which we have been referred, where, by the stipulations of the contract, or the course of dealing between the parties, the ven-dee is bound within a specified or reasonable time to return the property, with his dissent, or to keep it on the terms of the offer. In such transactions, the failure to return according to the terms of the agreement is an election to keep the property at the price agreed, and a waiver of all claim to damages on account of defects. Such was not the agreement between these parties. The sale in the first instance was absolute, provided the respondent chose so to consider it. His right to recover damages does not depend at all upon his returning or offering to return the articles purchased. If he could have done so, it would only have been necessary for the purpose of enabling him to recover back the purchase money paid and of relieving himself from future payments. He seeks neither of - these things, but merely asks compensation for the losses sustained by a breach of the warranty.
There is another question with which the case seems to have been unnecessarily burdened, and from which we desire to relieve it as early as possible. It seems to have been supposed by both sides, that the respondent’s right to recover depended in some way upon his neglect to call upon the defendants to make repairs, or their refusal to do so. With this idea proofs were offered, some of which were received and some rejected; instructions were asked, which were in part given and in part refused; and many exceptions were taken. If we rightly understand the contract, all these matters which had reference to the transactions between the parties after the expiration of twenty days from the time of the setting up and delivery of the machinery, were entirely foreign to the controversy. After this period the contract seems to have been treated as if it were still executory on the part of the defendants. This was clearly wrong. The terms of the agreement are too plain to be misunderstood. It was completely executed on the part of the defendants,
In this connection it may also- be well to notice .two other principles of law sought to be applied to this case; the one that, in actions for injuries arising from the negligence and carelessness of another, the party seeking redress must be himself free from fault, and must not by his own want of care have contributed directly to the injury received; and the other, that a party who, by his declarations or conduct, has induced another to act in a particular manner, will not afterwards be permitted to deny the truth of the admission, if the consequence would be to work an injury to such person, commonly called an estoppel in pais. It appears to us that neither of these principles has any application to it The former, as a substantive ground of defense, going to defeat the whole action, applies only to suits brought to recover damages occasioned by the negligent conduct of another, and" does not apply to actions for a breach of contract like the present. The plaintiff seeks to recover damages by reason of the alleged failure of the defendants to set up and
The doctrine of estoppel in pais seems equally remote. If it can be applied to any of the acts of the defendants here, by which they were guilty of a breach of their contract, we do not see why it is not equally applicable to every other case of a violated agreement. Equity and good conscience, no doubt, require that every man should faithfully and honestly perform his promises, but his neglect to do so will not shut him out from a full and fair investigation of the facts upon which his alleged non-performance is founded, or deprive him of the benefit of any legal testimony which he may adduce, showing or tending to show that he has fulfilled. Estoppels are sustained because it is against conscience to allow the party to assert to the contrary of what he has before said or done; but is it against conscience to give a party, prosecuted for the non-fulfillment 'of his engagement, a complete hearing in a court of justice? 1 We are not of that opinion. To say that he is estopped in such a case is to assume-the whole matter in controversy against him, to forestall the verdict of the jury, and to deny his right to an impartial trial according to the forms of the law. If the defendants refused to make repairs when by the contract they were obliged to, it is the object of this action to compensate the plaintiff in damages for the injuries which he sustained
It is contended by the respondent’s counsel that the agreement of the defendants to furnish “ machinery adapted to and suitable for the boat, and that would drive her from 12 to 15 miles per hour,” was an undertaking on their part to provide machinery that would propel her, “as she was,” at that speed. In other words, it is said that by this language they warranted her strength and capacity to endure the weight, shocks and friction of her machinery when in motion, and the force and action of winds and waves. It is difficult to frame an argument against a proposition so unreasonable and so unjust. The language does not warrant, nor did the parties contemplate it. The contract was to furnish engines and appurtenances adequate in weight, workmanship and power to run a boat of her size and dimensions at the proposed speed, it being understood that she was sufficiently strong for that purpose, of which the owner, as of course, took the risk. Few mechanics, we apprehend, could be found, who would be willing to undertake the manufacture of machinery “suitable” for boats, if thereby it was understood that they were to be held responsible for the sufficiency of such boats after their machinery was put in.
It appearing from the testimony that the improvements made by the plaintiff were made after the expiration of the
We were at first in doubt whether the plaintiff’s claim for board and wages of seamen should not be confined to such time as was lost after the machinery was delivered, and up to and including a reasonable time for supplying other, on the ground of his right, upon the failure of the defendants to furnish it on the 1st of August, to consider the contract at an end and to proceed to supply himself elsewhere ; and because his waiver of performance as to time might be considered an abandonment of any claim for damages on that account. But on further consideration we are satisfied this would be wrong. A waiver in such cases is made for the benefit of the party in default, and, as against him, should be construed strictly, and liberally in favor of the party making it. It is supposed to be granted at the request of the party indulged, and should be confined to the precise right waived, (which in this case was the right to refuse the machinery after the day,-) and should not be extended to collateral matters. In this case there can be little doubt that the plaintiff was deterred from making exertions to procure other machinery by the conduct and assurances of the de-
It is. almost needless for us to say, further, that the authorities cited by the respondent’s counsel, 18 Yermont, 620, an(j gp "Wend., 842, do not establish, as a measure of damages in cases like this, the sum expended by the purchaser in making repairs, or furnishing other machinery, unless it be sp expressly- agreed. In the absence of such special agreement, the parties do not. contemplate it. In those cases, where the defects, which were unimportant, extending only to a single article or small portion of the machinery and not to the whole subject of the contract, had been supplied by the purchasers on fair terms, evidence of what they had expended was admitted, as a ¡aroper means of estimating the sum to be deducted, or the true amount of damages as measured by the ordinary rule.
It follows from the views that we have taken, that the judgment must be reversed, and a new trial awarded.