130 Wis. 301 | Wis. | 1907
The order of purchase provides, in effect, that it was given subject to the acceptance of defend ant, and further, under the head of “warranty,” provides that the article sold shall be made of good material, well constructed, and
The principal contentions of defendant are (1) that sale was not from defendant to plaintiff, but from Wright & Thum to plaintiff; (2) that there was a defect of parties plaintiff, John Brelim, who signed the contract, being a necessary party; (3) that the engine complied with the warranty; (4) that no notice was given in compliance with the warranty; (5) that no rescission could be had because the contract was executed. Defendant also assigns thirty-two errors alleged to have been .committed by the court.
1. We think the evidence clearly shows that the sale was made by defendant. The order was a written order upon the defendant for the engine, signed by plaintiff and John Brehm, directing defendant to furnish the signers of the order the engine in care of Wright & Thum, agents at Menom-qnie, which order contained the terms of sale and warranty. This order was accepted by defendant, and the- engine delivered through Wright & Thum. When the order was accepted the contract between plaintiff and defendant was closed. It was clearly a contract with defendant, and not with Wright & Thum. The evidence also shows clearly that Brehm merely signed as surety for plaintiff, and had no other interest. The plaintiff paid the notes given for the engine and the freight charges, and is the real party in interest. Therefore the action was properly brought in his name.
3. It is insisted that no sufficient notice was given to defendant. Plaintiff notified defendant by letter December '13th that the engine was not running satisfactorily; that it would not run at all except for a little while at a time; that he had been able to saw only at the rate of two or three cords per day; that he was not able to say why it did not work, but that it did not, and asked defendant to send an expert at earliest convenience to find out what the trouble was. Plaintiff further stated in the letter: “Your agents attempted to make it run, but failed. It runs dry, and does not have power sufficient to run a saw.” It is obvious from the evidence that the plaintiff gave as specific notice as he was able. He could not specify more particularly the defects because he did not know. The notice was sufficient. Nichols & S. Co. v. Charlebois, 10 N. Dak. 446, 88 N. W. 80. December 18, 1902, defendant replied to this notification, but refused to send an expert except at the expense of plaintiff. December 23, 1902, plaintiff notified defendant by telegram that the engine would not work, and that he would return it the next day. In compliance with this telegram plaintiff did return the engine to Wright & Thum and they refused to receive it. So he left it in a shed one block from their place of business and notified them of such delivery, and assumed no further control of it. December 26th, thirteen' days after plaintiff .gave notice of defects, and after defendant had refused to send an expert, it sent one. At this time the enginé had been returned, and plaintiff refused to co-operate in testing it, claiming the contract of sale had been rescinded. The court submitted to the jury the question of whether the expert was sent within a reasonable time, and also whether the engine complied with the warranty; also whether notice had
4. It is also urged that the plaintiff could not rescind, be-' cause the contract was executed. The plaintiff refused to accept, and rescinded as soon as he discovered that the engine was not in compliance with-the warranty. This he had the right to do. It is well settled in this court that for breach of warranty the purchaser of the article may rescind the sale and recover his damages. Fairfield v. Madison Mfg. Co. 38 Wis. 346; Fisk v. Tank, 12 Wis. 276; Parry Mfg. Co. v. Tobin, 106 Wis. 286, 82 N. W. 154.
Some point is made on the return of the engine, defendant claiming that the return should have been to Minneapolis; also that plaintiff waived the warranty by not co-operating with the expert and rendering friendly assistance December 20th. The return to Wright & Thum, agents of defendant and parties through whom the sale was made to plaintiff, was sufficient under the evidence. The defense here is not based upon the failure to return to the proper place, but the right to return at all.
On the question of waiver because of failure to render friendly assistance and co-operation and opportunity for test, it is sufficient to say that at the time this test was proffered the sale had already been rescinded and the engine returned. If the export had not been seasonably sent, plaintiff had the right to rescind. This question was submitted to the jury and found in favor of plaintiff.
5. Thirty-two exceptions were taken to alleged errors committed by the court. The admission in evidence of the order for the purchase of the engine was proper. The correspondence received as well as the delivery of the engine upon such
The admission of plaintiff’s telegram offering to return the engine after it failed to comply with the warranty and no expert had been sent to remedy it was not error. It was competent to give notice to defendant that plaintiff claimed the engine did not comply with the warranty and that he would return it. It is claimed that it was not competent to contradict the witness Thum, defendant’s agent, who had testified for plaintiff, and that the admission of such evidence was error. Plaintiff was not bound by the answers of the witness Thum simply because he had called him as a witness. Smith v. Ehanert, 43 Wis. 181.
Error is assigned because-copy of telegram was admitted without notice to produce original. But it appears' no notice was necessary because defendant’s counsel stated defendant did not have the original and never received any such telegram.
Error is assigned because the court refused to submit to the jiiry one question, “Was the engine in suit, with proper use and management, capable of doing well the work for which it was made and sold?” The defendant did not ask for a special verdict, hence was not entitled to have such question submitted. Fenelon v. Butts, 53 Wis. 344, 10 N. W. 501; Schatz v. Pfeil, 56 Wis. 429, 14 N. W. 628; McDougall v. Ashland S. F. Co. 97 Wis. 382, 73 N. W. 327.
Error is assigned because the court refused to charge the
Error is assigned because of certain language used by the court in the charge respecting the plaintiff’s right to rescind for breach of warranty and failure to remedy defects within reasonable time. It is claimed that this language amounted to telling the jury that the plaintiff was entitled to rescind because of breach of warranty. But an examination of the charge shows that the language is hardly capable of the meaning ascribed to it. Besides, in other parts of the charge the-jury were fully and properly instructed upon the subject, and' the question whether there was a breach of warranty fairly submitted to them..
Other errors assigned have received careful consideration, but we do not regard them of such importance as to merit special consideration. We think no reversible error was committed, and that there -is sufficient evidence to support the verdict. <
By the Court. — The judgment of the court below is affirmed.