Hiltgen v. Biever

162 Wis. 315 | Wis. | 1916

Keewif, J.

The contract made by the parties as found by the second question and answer of the special verdict .amounted to a sale on trial. Under it the defendant was to have a reasonable time, under all the circumstances of the ■case, to try the plows. It is very clear from the undisputed ■evidence that the defendant accepted the plows. The evidence is undisputed that he not only plowed all his own land, 100 acres, but plowed ninety-two acres for other persons. He used the plows twenty-two or twenty-three days. There is no evidence that it was necessary to use the plows any considerable time in order to determine whejther they would do good work. Obviously a day or less would have been sufficient to test the plows and determine whether they were suitable.

Under such circumstances it must be held that the defendant accepted the plows as a compliance with the terms of sale and is liable for the purchase price. Fox v. Wilkinson, 133 Wis. 337, 113 N. W. 669; Kelsey v. J. W. Ringrose N. Co. 152 Wis. 499, 140 N. W. 66; Estey O. Co. v. Lehman, 132 Wis. 144, 111 N. W. 1097.

There is no evidence that the plows were of less value than the purchase price. The complaint was that they were larger, fourteen-inch plows, while the contract called for twelve-inch plows. All the counterclaims for damages pleaded, except the claim for seven extra stubble bottom shears, were decided against the defendant and no ■ appeal taken by him. The evidence tends to show that the seven shears were worth $21. This sum, therefore, should he deducted from the purchase price of the goods sold, viz. $575, and judgment rendered for the balance.

By the Court. — The judgment of the court below is reversed, and the cause remanded with directions to enter judgment for the plaintiff for $554 with interest and costs.