159 Wis. 584 | Wis. | 1915
It is contended that the court erred in excluding evidence of the representations made by the plaintiffs respecting the age of the car and its fitness for use as an automobile. The purpose of the evidence was to show that the car, as to its condition and fitness for use, did not comply with the representations the plaintiffs made in this respect when the sale was negotiated. The parties to the written order for-the car do not dispute that it was mutually accepted by them In making the sale and purchase of the automobile. By this, writing the defendant agrees to purchase the car in question, at the agreed price of $650, and pay this sum as stipulated. The order also contains the two agreements above stated,
It is contended that the court erred in holding that the evi■dence as a matter of law did not tend to show that there was a breach of the written warranty guaranteeing this automobile for a period of one year. The court interpreted this guaranty as warranting the car when sold to be in a condition fit for use and that it would run for a year, when used by the defendant in his business, as contemplated by the parties, with proper care and use, if the plaintiffs made the necessary
The suggestion that defendant’s pleadings are insufficient to raise these questions because the answer does not formally demand judgment by way of counterclaim is not well founded. The allegations of the answer must he given a liberal construction, and when so construed they sufficiently allege a claim for recoupment, if the evidence had shown that defendant sustained damages by reason of a breach of the contract of sale. Manning v. School Dist. 124 Wis. 84, 102 N. W. 356; Steckbauer v. Leykom, 130 Wis. 438, 110 N. W. 217; Rib Falls L. Co. v. Lesh & M. L. Co. 144 Wis. 362, 129 N. W. 595.
The action of the trial court by directing judgment for the recovery of the amount due on the note was correct because the evidence does not support the claim that plaintiffs in any way breached the contract of sale.
By the Court. — The judgment appealed from is affirmed..