J. B. Bradford Piano Co. v. Baal

166 Wis. 134 | Wis. | 1917

Esohweiler, J.

Conceding, for the purposes of this appeal, that the court was warranted in submitting the question to the jury as to whether or not there was an oral warranty as to the fitness of this piano given at the time of the written contract of sale, yet the retention and use of the piano from some time in April and the payments made intermediate that date and the first of July, when the first complaint or objection was brought to the notice of the plaintiff, brought the situation of the parties outside of the realm within which a jury may determine what is and what is not a reasonable time. By what defendant admittedly knew of the difficulty with the piano in the month of April he was placed in a situation that required him to act promptly, he then having all the facilities for ascertaining the facts that he could have, it needing but the questioning at that time of the same instructor in music-from whom he learned definitely in the month of June of these defects. There was, therefore, by his failure to act promptly in April, his delay until the month of July in 'bringing home to the plaintiff the defects in the piano, and his payments on account, an acceptance of the same with whatever faults and imperfections it may have had, as a matter of law, and an absolute waiver of any right on his part to rescind the contract on any such grounds.

This court has held from as early as the cases of Boothby v. Scales, 27 Wis. 626, and Paige v. McMillan, 41 Wis. 337, 341, that upon a breach of warranty a purchaser is entitled to rescind the contract and may return or offer to return the goods, yet that tbis must be done witbin a reasonable time; and although it may, in some instances, be a question of fact for the jury to determine whether or not the offer to return was made within a reasonable time, yet cases may and do arise where the court must say, as matter of law, that it came too late and therefore exclude consideration of such question by the jury. J. L. Owens Co. v. Whitcomb, 165 Wis. 92, 160 N. W. 161, and cases there cited.

The duty to return promptly has been declared as the legislative policy also (sec. 1684i — 48, Stats.), wherein it is provided that a buyer is deemed to have accepted the goods when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.

■ The defendant, therefore, having failed to comply with the duty required of him, there was in any event no proper support for his counterclaim and judgment should have gone for, the plaintiff.

By the Gourt. — The judgment of the circuit court is reversed, with costs, and the cause remanded with directions to enter judgment for the plaintiff for the four months’ in-stalments of $15 each, with interest thereon.