La Crosse Plow Co. v. Brooks, 142 Wis. 640

La Crosse Plow Co. v. Brooks

142 Wis. 640 | Wis. | 1910

Maeshall, J.

The judgment in this case is rather novel. We speak of it in passing, so it may not be taken as a precedent worthy of being followed. Neither jury nor the court had anything to do with the title to the plow. The judgment, as the trial court viewed the matter, should simply have been for the amount recoverable. The action was not in rem in any sense. It was a plain action upon contract for balance of account subject to any valid counterclaim for breach of warranty. It were better to have kept all other matters out of the record.

The only material question upon the appeal is as to whether the court erred in holding that there was an implied warranty of fitness. If not, manifestly, judgment should have been rendered for appellant for the full amount of its claim. Indeed, in sruch case, the cause should not have been submitted to the jury, at all, as it was correctly held that there was no express warranty and no defense by way of counterclaim or otherwise, unless defendants were entitled to the benefit of an implied warranty of fitness.

As indicated in the statement, the article ordered was a well-known and advertised implement of appellant’s manufacture. Respondents’ customer knew that he was to get a gang plow of that kind. Respondents engaged to obtain such a plow. In short, respondents and their customer contracted with reference to a combination plow of appellant’s manufae-ture, and respondents ordered and obtained it.

Now.it is a familiar rule that where a known, defined^ and *644described article is ordered and furnished, so the customer gets precisely the particular thing contracted for, there is no implied warranty that it will answer the particular purpose of the buyer. That is quite elementary. J. I. Case P. Works v. Niles & S. Co. 90 Wis. 590, 63 N. W. 1013; J. Thompson Mfg. Co. v. Gunderson, 106 Wis. 449, 82 N. W. 299; La Crosse P. Co. v. Helgeson, 127 Wis. 622, 106 N. W. 1094; Logeman Bros. Co. v. R. J. Preuss Co. 131 Wis. 122, 111 N. W. 64. There is no particular controlling significance-in the use of the precise combination of words, viz.: “Where a known and defined and described article is ordered and furnished,” etc., though it is so frequently used in decisions that 'it might be thought otherwise. The idea is that, if a person orders an article of a particular description and appropriate name in the trade, or a particular article made by a particular manufacturer, and gets it, he takes the article without implied warranty of fitness for his use. The Minnesota court puts it in this way:

“If an order be given for a specified article of a recognized kind or description, and the article is supplied, there is no warranty that it will answer the purpose described or supposed, although intended and expected to do so.” Wis. R. P. B. Co. v. Hood, 54 Minn. 543, 56 N. W. 165.

Other courts use different language to express the same idea; i. e. in case a purchaser obtains the particular thing ordered as known in the trade and he does not exact any express warranty, he takes it at his peril of its being adaptable to his purpose.

Now does the fact that, 'in this case, respondents, in ordering the plow, informed appellant of the particular use for which it was wanted, raise, by implication, a warranty that it would prove to be suitable for that particular use, notwithstanding the general rule? The proposition stated is answered in the negative as emphatically and generally as in cases where the particular element is absent, by many de*645cisions of this and other courts. Milwaukee B. Co. v. Duncan, 87 Wis. 120, 58 N. W. 232; Logeman Bros. Co. v. R. J. Preuss Co., supra; Mason v. Chappell, 15 Grat. 572; Whitmore v. South Boston I. Co. 2 Allen, 52; Seitz v. Brewers’ R. M. Co. 141 U. S. 510, 518, 12 Sup. Ct. 46.

In the first case cited the court said, quoting from a leading English case:

“Where a known, described, and defined article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still, if the known, defined, and described thing be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer.”

This court adding: “.Where the buyer in such case gets what he bargained for, there is no implied warranty.” Again the court said in the second case cited:

“If a manufacturer or dealer contracts to sell a known or •described thing, although he may know the purchaser intends it for a specific use, if he delivers the thing sold there is no implied warranty that it will answer or is suitable for the specific use to which the purchaser intends applying it.” Logeman Bros. Co. v. R. J. Preuss Co. 131 Wis. 122, 128, 111 N. W. 64, 67.

Similar language is used in all the other cases.

Indeed, the doctrine indicated is a very old one, yet it is one liable to be overlooked in the course of a trial of first instance, as it was in this case. Though the rule is so familiar that the sale of a known article upon an order for that particular thing, does not, ipso facto-, carry, by implication, a warranty of fitness, yet, where there is the added circumstance mentioned, the idea will naturally occur to one, — not familiar with the law on the subject, or being familiar, not called upon with sufficient frequency to apply it to have it in mind at all times when challenged upon the subject, — that there should be and is a warranty of fitness. That seems to have been the case here. That there-is no warranty in such cir-*646eumstances, seems very plain. The trial court should so have ruled and disposed of the case, on the undisputed evidence that respondents obtained just what they ordered, by rendering judgment according to the prayer of the complaint.

By the Court. — The judgment is reversed, and the cause remanded with directions to render judgment as indicated in this opinion.