Ganson v. MadiGan

9 Wis. 146 | Wis. | 1859

By the Court,

Paine, J.

The question presented by the exceptions in this case, is whether the court below was right in instructing the jury ; that it was incumbent on the plaintiffs to show that prior to the first day of July, 1855, one of the reapers delivered to Dousman & Co., was set apart for the defendant, and marked with his name.

We think this instruction was wrong. The order of the defendant called for the delivery of a reaper of the kind described in it, to Wells & Hill, or to Dousman & Co., for him, on or before the 1st day of July, for which he was to pay as proposed. The witness of the plaintiffs testified that such a reaper was delivered to Dousman & Co. for the defendant before that time, and was there for the defendant at that time and afterwards. He also testified that other reapers for different persons, were also delivered to them, but that they were all alike, being the only kind manufactured by the plaintiffs, of the patent called for by the defendant’s order.

r "The defendant testified that he went to Dousman & Co.’s after the first of July, and asked for the reaper. It appeared from their books that they had a reaper for him, but he insisted on being shown one with his name marked on it. They said there was none marked, but that he could select any one from the yard; and they offered to select one for him, to set it up and load it on his wagon, if he would take it. But he says he declined to take it, “ because it was not sent to him with his name on it” And on this state of facts the court charged the jury that the plaintiffs were bound to show that one of the reapers had been set apart for the defendanr, and marked with his name, prior to the first day of July.

This strictness of proof might be required if the case turned upon the point whether title to any specific reaper actually passed to the defendant. If one of them had been levied on as his, or if they had been destroyed, and the question was who was to bear the loss; it might be material to inquire whether any one had actually been set apart, and designated as the machine of the defendant, so as to pass the title. But here the question is different. It is whether the plaintiffs complied with the order of the defendant, and delivered to Dousman & Co. for him, a reaper of the kind specified, before the 1st day of July. Not whether [the title to any particular reaper actually passed, but whether one was furnished for the defendant, according to the order, so that the title would have passed, if he had not refused to take one. And we think that on this question the instruction of the court was erroneous. If one orders of another a horse of a particular description, and the latter brings him two horses, each answering the description, and tells him to take either, is not that a substantial compliance with the contract? Could the latter on such a tender, refuse to take either, and excuse himself for the non-performance of his contract, by saying that the other party had not offered him such a horse as he had ordered? We think not. And so in this case, where a manufacturer of reapers, having orders from various parties, sends enough to fill all the orders to a designated consignee, we think this is a substantial compliance with the contract with each, provided such a machine as he ordered is there ready for him at the appointed time. And to allow a party having so ordered a reaper, to refuse to take it, because among a number answering the description, no particular one had his name marked on it, is too great a refinement upon technicality to be established as a practical business rule.

That the delivery of a number of machines to Dous-man & Co. before the time, so that the defendant could have either of them on calling for it, and complying with the contract on his part, was a good performance on the part of the plaintiffs, may be shown by the analogy to be drawn from the rule as to the tender of money. Thus, ever since Wade’s Case, 5 Co., 115, it has been settled that a tender of a greater sum than the amount due, is a good tender, if the money offered be of such a kind that the creditor can take out of it the exact amount due, without being compelled to make change. In Betterbee vs. Davis, 3 Camp., 70, Le Blanc, J., says: “ If I tender a man twenty guineas in the current coin of the realm, this may be a very good tender of fifteen, for he has only to select so much and restore me the residue.” So we may say here, with equal reason, that the furnishing of twenty machines, and offering the defendant either of them, was a good compliance with his order, for he had only to take one and leave the residue.

The defendant testified that these reapers were four-horse reapers, and that his was to be a two-horse reaper. But the charge of the court prevented this question from being considered, and defeated the plaintiffs’ action, even though every reaper at Dousman & Co.’s was of the'precise kind ordered by the defendant. But if they were not of the kind ordered, that question should be fairly determined by the jury or the court, or both, as the case may require. Whether the words, “ a team,” used in the defendant’s order, should be held to designate a two-horse or a four-horse team, or whether a proper construction of them would hold them to mean such a team as was usually-required for a reaper of the patent ordered, are questions which will have to be determined on another trial. Certainly the instruction of the court precluded their being considered in the last.

The judgment must be reversed, and the cause remanded for a new trial.

Dixon, C. J., did not sit at the hearing of this case.