146 Wis. 485 | Wis. | 1911
The warranty of the engine reads as follows:
“Said Alamo gasoline engine to be warranted made of good material and first-class workmanship-, and for one year from date of shipment the Sandwich Manufacturing Company will make good all breakages on said engine not caused by ordinary wear or accident, misuse or neglect, always providing that the Sandwich Manufacturing Company is not called upon to pay carriage on such broken parts as the purchaser may claim to be defective, and that fair and reasonable proof be submitted to the said Sandwich Manufacturing Company when such claim of defective parts be made. The purchaser agrees that all repairs or extras furnished under the above*487 warranty will be put in place by him without cost of labor or other expense to the Sandwich* Manufacturing Company. However, if the said Sandwich Manufacturing Company is called upon to put in order, and at which time it is found that the fault was not in the machine but in the manner in which it was operated, then the purchaser agrees to pay expenses of man (including time at $3 per day) sent to operate it, and the machine will be considered as filling the warranty.”
The defendant claims that before a suit can be maintained upon this warranty it is incumbent upon plaintiff to prove that he requested the defendant to mate good, within the year, all breakage on said engine not caused by ordinary wear or accident, misuse, or neglect; that he offered to pay carriage thereon and to submit fair and reasonable proof when such claim of defective parts was made, and also to put in place without cost of labor or other expense to the defendant all repairs or extras furnished under the warranty; and that, inasmuch as he had refused to do so, he could not maintain the suit. The plaintiff, on the other hand, contends there was an absolute warranty as to good material and first-class workmanship, and that the provisions following such warranty were only provisions as to how he could, within the year, replace broken or defective parts, at the partial expense of the defendant, if hé so elected, but that he was not obliged to resort to those provisions unless he saw fit, since they were inserted for his benefit and not for the benefit of the defendant. The latter construction seems the more reasonable one. The engine is warranted to be made of good material and first-class workmanship, and then follows the statement that for one year from date of shipment the defendant will do certain things toward making good breakage under certain specified conditions. The offer to do so can in no wise affect the previous warranty, nor is there any obligation on the part of the purchaser to avail himself it. The defendant’s liability as-to warranty of material and workmanship remains unaffected by the purchaser’s availing himself, or failing to avail him
Upon the question as to breach of the warranty of good material and first-class workmanship there was ample evidence to sustain the verdict. It is therefore, in the absence of prejudicial error relating thereto, conclusive upon the defendant.
The measure of general damages submitted to the jury was the difference in market value between the engine, with respect to material and workmanship, as it was at the time of delivery and as it should have been had it fulfilled the warranty. This was the correct rule in such a case. Archer v. Milwaukee A. E. S. Co. 144 Wis. 476, 120 N. W. 598.
Plaintiff’s claim for special damages is founded upon loss of profits in business. It is a well settled principle of law that special damages can be recovered only when it is clear that they were fairly within the contemplation of the parties at the time the contract was made, and when their amount can be ascertained with reasonable certainty, and their origin, with like certainty, can be traced to the breach of the contract. Guetzkow Bros. Co. v. A. H. Andrews & Co. 92 Wis. 214, 66 N. W. 119; Howard v. Stillwell & B. Mfg. Co. 139 U. S. 199, 11 Sup. Ct. 500; Stevens v. Yale, 113 Mich. 680, 72 N. W. 5; Griffin v. Colver, 16 N. Y. 489. In the present case the only evidence to show that special damages were within the contemplation of the parties is the fact that plaintiff told the agent of the defendant that he expected to locate a feed-mill, planer, and saws at Elmwood; that he had previously had such outfit at Spring Valley, about eight miles distant. As to the damave to his business when the mill was idle,
This disposes of the main questions in the case. Defendant assigns twenty-seven errors. Many of them relate to the question of special damages and are eliminated -by their disallowance. Others not specially treated must be deemed not well taken.
By the Court. — The judgment is modified by deducting therefrom as of the date of its entry the sum of $200 allowed for special damages, and as so modified is affirmed, with costs to defendant.