90 Wis. 590 | Wis. | 1895
The finding of the court proceeds in part upon the basis of an implied warranty that the wheels were .suitable for the purpose for which the plaintiff desired them, namely, “ for our season’s wants,” it being engaged in manufacturing plows, cultivators, etc., intending to attach them to such implements, with which it was supplying the trade; and in part on the basis of the written warranty “ against defects in material and workmanship,” the defendants having used common iron in the manufacture of the spokes, and that the wheels were defective in material, and were not fit and proper for the uses and purposes for which they were, desired. The plaintiff’s damages were assessed at the gross sum of $1,655.54, but how much for defective materials, or ,how much upon the breach of the alleged implied warranty, it is impossible to say, nor does it appear upon what number of wheels the assessment was made; so that, in the view we have taken of the rights of the parties, judgment cannot be given on the finding, and a new trial becomes necessary.
1. The wheels were made specially for the plaintiff, and it specified the sizes, dimensions, and material, and had looked over and examined wheels of that kind manufactured by the defendant, which had been tested in the presence of the plaintiff’s representatives as to their quality and strength, 'before signing the contract. In the absence of any written or oral warranty, it seems to be quite well established that in such a case as the present no warranty of the suitableness of the wheels for the purpose desired can be implied. The purchaser, in such case, takes the risk of the fitness of the wheels for their intended use; and although it was stated that they were required for a particular purpose, if the known, defined, and described kind of wheels was actually ¡supplied, there was no implied warranty that they would ¡answer the particular purpose intended by the purchaser,
2. It is insisted, however, that the plaintiff relied upon the representations made by the defendant’s agent as to the plan or method of construction, and, in particular, the manner of securing the spokes in the hubs of the wheels; but these representations preceded the execution of the written contract, and the plaintiff took a limited warranty, incorporated in the written contract, in respect to material and workmanship, going to and covering in part the suitableness «of the wheels for the purpose for which the plaintiff desired them. Where an article is sold by a formal written con
3. The contention of the plaintiff that it was not precluded' by the warranties in the written contract from insisting upon an implied warranty that the wheels should be suitable for the purposes for which they were required, for reasons in addition to those already stated cannot, we think, be sustained. The fact that the limited warranties going to the question of suitableness of the wheels were expressed in the contract, by the strongest implication excludes and negatives the idea that it was intended that other or more comprehensive warranties should exist, and repels any implication of law to that effect. The contract as written must be taken as the final and conclusive evidence of all that was intended or agreed upon. The familiar rule, “ Foapressio unius est exelusio alterms,” clearly applies. The demand of the purchaser for certain specified warranties indicates that no others were intended or expected. Had the parties intended that there should be an implied warranty, there was no occasion to make any stipulation on the subject. ’The one introduced must be taken as covering the entire subject; otherwise it would be idle and unmeaning. Adjudicated cases on this point are numerous and conclusive. We have not been referred to any decision expressly on the point to the contrary. Dickson v. Zizinia, 10 C. B. 602; Chanter v. Hopkins, 4 Mees. & W. 399; Baldwin v. Van Deusen, 37
The case of Merriam v. Field, 24 Wis. 640, was relied on as establishing a contrary view. In that case there was an express warranty of Uñe in the bill of sale, but it was held that facts might be shown from which an implied warranty of quality would arise. Between these two subjects there was no dependent connection, but each stood by itself. There was not, as in this case, any qualified or restricted warranty :upon the question of quality or suitableness, and the case was ruled on the authority of Bigge v. Parkinson, 7 Hurl. & N. 955, where the warranty, as in Merriam v. Field, was on a : separate and independent subject, namely, that the goods would pass inspection, and it was held that an express written warranty on that subject would not preclude an implied one that the goods were in fact fit for the purpose intended. 'The case of Boothby v. Scales, 27 Wis. 626, was also referred to, but in this case there was no express warranty by written contract, and it was held that an implied warranty of suitableness might exist, although a handbill had been delivered at the time of the sale and the agent of the vendor ^affirmed of the fanning mill that it possessed the capacities therein set forth. There was no written warranty on any subject, and the particular point litigated was that the agent making the oral affirmation had no authority to warrant the mill. The case, therefore, is no authority upon the point under consideration. As already stated, the plaintiff having-specified the sizes and dimensions and materials of the particular plan or kind of wheel it desired, and its agents having-looked over and examined wheels of that kind, manufactured by the vendor, which had been tested in their presence as to their quality and strength, the conclusion seems irresistible that, subject to defects in material and workmanship, the
A It is impossible to determine from the general terms of the finding upon Avhat theory or basis the plaintiff’s damages were assessed. The proper measure of damages was the difference between the actual value of the defective-wheels delivered, and their value had they been in accordance with the .written warranties, and the price paid, or agreed to be paid, for them was competent evidence of the latter value (Giffert v. West, 33 Wis. 617; Merrill v. Nightingale, 39 Wis. 247; Aultman & Taylor Co. v. Hetherington, 42 Wis. 622; C. Aultman & Co. v. Case, 68 Wis. 612), to which may be added compensation for the trouble and expense suffered, and other special damages incurred, in consequence of the wheels not being in conformity with the contract (Suth. Dam. (2d ed.), §§ 670, 671; Fisk v. Tank, 12 Wis. 306; Dushane v. Benedict, 120 U. S. 630). The price-for which the purchaser had sold the goods cannot be shown, in order to modify the rule above stated, nor is it material whether he had sold them at all. Muller v. Eno, 14 N. Y. 597; Medbury v. Watson, 6 Met. 246; Brown v. Bigelow, 10 Allen, 242; Jones v. Just, L. R. 3 Q. B. 197; Bach v. Levy, 101 N. Y. 511, 515. The court refused to allow the plaintiff dam
5. It was optional with the plaintiff to have certain of the-specified wheels made with eight steel or ten iron .spokes,, and it insisted, in the main, on having them made with ten iron spokes. It is claimed as a serious defect in the wheels, that common iron was used for that purpose. There is evidence that the defendant figured on using common iron, but. not that this fact was communicated to the plaintiff, or that, any particular kind or grade of iron was discussed or agreed on. The evidence tends to show that refined iron ought to-have been used. The stipulation against defective material is substantially an agreement that material not suited to the-purpose should not be used, and required that the iron for the spokes should be of the necessary grade and quality, if there was any such procurable in the market. The defendant could not comply with the contract by using a cheap- and inferior kind of iron, unfit to be used in the manufacture of such wheels.
6.' In view of the facts presented by the record, and the-contentions of counsel on the question of damages, it is-proper to add that the difficulty in assessing damages arises-mainly out of the nature of the proof offered to show how many wheels were defective for want of conformity to the-warranties in the contract, rather than out of any uncertainty as to the rule of' damages. The fact that certain wheels were defective in these respects, the number of them, and the proper amount of damages, must be established by competent and satisfactory evidence. Meagley v. Hoyt, 125 N. Y. 771; Leeds v. Metropolitan G. L. Co. 90 N. Y. 26; Houghkirk v. D. & H. C. Co. 92 N. Y. 218, 225. It cannot
By the Court.— The judgment of the circuit court is reversed on each of the appeals, with costs, and the cause is remanded for a new trial.
A motion by the defendant for a rehearing was denied September 26, 1895.