140 Wis. 534 | Wis. | 1909
The appellant contends against the judgment that defendant’s right to rely upon breach of warranty was by the express terms of the contract dependent upon return of the machine to the place where received, which confessedly never took place. But it is found and established without
It is further contended in this connection that the authority of the general agent to waive any of the terms of the contract is not shown and is contradicted by the writing itself, which declares that no person “has authority to waive, alter, or enlarge this contract or to make any new or substituted or different contract, representation, or warranty. Salesmen, mechanics, or experts are not authorized to bind the company by any act, contract, or statement.” There is some evidence of very general scope of the authority of the general agent in deciding and declaring the attitude of the company with reference to this machine and the plaintiff wholly refrained from offering any in contradiction of such authority. The court has found that the plaintiff company acted in this declaration made by its general agent, and we think such finding has support in the evidence offered by the defendant which the
2. It is further contended that defendant, after having finally decided that the machine was defective and did not satisfy the warranty, made use of it for his own benefit for parts of two days, and therefore is precluded from rescinding the contract for breach of warranty. Rules of law governing this subject were laid down, in the light of numerous citations, in Fox v. Wilkinson, 138 Wis. 337, 113 N. W. 669. The trial court evidently considered that the use made of the-machine by defendant, after plaintiff’s last effort to make it satisfy the warranty, was only by way of reasonable test, for he refused to find that it was an appropriation of the machine-to defendant’s own use and benefit consistent only with the attitude of ownership. The evidence, while perhaps ambiguous, preponderantly supports the former view. There is in-such conduct, therefore, no obstacle to defendant’s subsequent rescission of the contract of purchase.
By the Gourt. — Judgment affirmed.