Lindsay v. Fricke

130 Wis. 107 | Wis. | 1906

Kerwin, J.

The contention on the part of counsel for appellants to reverse the order overruling the demurrer to the defendant’s counterclaim is that it appears from the counterclaim (1) that defendant failed to settle for the machine as provided in the contract, and therefore all warranties became void; (2) that defendant failed to return the engine, but accepted it, and therefore has no claim for damages. The counterclaim, on demurrer, must stand or fall upon the allegations thereof. It is alleged therein that the defendant never, ref used to make settlement for the engine, and this allegation is a verity upon this appeal. Therefore all other questions discussed, as to whether defendant was bound to make settlement if demanded, need not be considered. It is alleged that the special guaranty inserted in the first part of the contract, to the effect that the engine is guaranteed to pull a 36x60 Avery separator on the road or while threshing, was so inserted in the contract at the special instance and request of the defendant, and that in making the contract of purchase he relied upon said guaranty. It is further alleged that this guaranty was broken, and that the engine was not capable of pulling the separator mentioned, in consequence of which defendant sustained damages. So it is very plain from the allegations of the counterclaim that there was a breach of this special warranty, entitling the defendant to damages, and it is not rendered void by the other clause in the contract to the effect that all warranties shall be void if the machinery is not settled for, because the counterclaim alleges that the defendant never refused to make settlement, which averment is consistent Avith other allegations of the counterclaim.

But it is claimed that it appears from the allegations of the counterclaim that the defendant never returned the engine, but, on the contrary, accepted it, and that under the contract he was bound to comply Avith the provisions requiring notice to be given and opportunity furnished to plaintiffs to remedy the defects, and, if not made to fill the warranty, the engine should be returned immediately, and that he failed to comply Avith this provision and accepted the engine, and therefore has no claim for damages. It is plain from the allegation's of the counterclaim and the terms of the contract referred to therein and set up in the statement of facts that the engine was sold with the special guaranty to the effect that it would pull a 36x60 Avery separator, and for a breach of this guaranty the defendant is entitled to dam•ages, or, in case he has not accepted, he may rescind the contract, return the engine, and recover the consideration paid. But it is said by plaintiffs that under the contract defendant had no election; that the provisions of the contract respecting notice and return were exclusive and must be strictly complied with, and that defendant not only failed to comply with such provisions, but accepted the engine, and therefore has no remedy.

The question turns upon the construction of the contract of purchase. In addition to the warranty heretofore mentioned it contains a warranty to the effect that the article is of good material, well made, and with proper management capable of doing as good work as any similar article made in the United States, and that, if said machine shall fail to fill "this'warranty, written notice shall be given to the plaintiff and to the .party through whom the machinery was purchased, stating wherein it failed to fulfil the warranty, and opportunity and assistance given to remedy the defects, and, if the machinery cannot then be made to fill the warranty, it shall be returned immediately and another furnished on the same terms of warranty or money refunded, and that continued possession for ten days after first use shall be conclusive evidence that the warranty is fulfilled. It is very plain that this warranty is entirely separate and distinct from the special warranty in the first part of the contract to the' effect that the engine would pull the separator. This latter warranty makes no mention whatever of the capacity of the engine, and the conditions to be complied with clearly have no reference to the first warranty. In other words, it is only in case of a breach of the warranty respecting being of good material, well made, and capable of doing-good work that the defendant was obliged to give the notice and comply with the conditions specified in the contract,'because by its language such conditions refer exclusively to this warranty, and not to the special warranty stated in the first part of the contract, to the effect that the engine is guaranteed to pull a 36 x 60 Avery separator on the road or while threshing. There is no allegation in the counterclaim that there was any breach of this latter warranty, but simply a breach of the first; and, there being no condition attached to the first warranty respecting notice or return, the ordinary rules of damages with regard to breach of warranty apply. It is very clear from the contract that the defendant was not obliged to give notice or return in case of breach of the first warranty specified in the contract, to the effect that the engine-would pull the separator.

It is claimed by "counsel for appellant that the allegations-of the counterclaim show an acceptance of the engine. True, the counterclaim alleges that, after defendant discovered that the engine was not in compliance with the warranty and notice given that he would not accept it, he used it for a few days to finish up some work; but it also appears from other-allegations that the reason he used the engine was that he-expected plaintiffs would remedy the defects and make it comply with the warranty, as they had repeatedly promised and attempted to do. It is not altogether clear, upon the allegations of the counterclaim, whether defendant accepted the engine or not. If he did not, he had two remedies: either-to rescind the contract because of breach of warranty and return the machine and recover consideration paid, or retain it and recoup his damages for breach of warranty. But it is unnecessary to determine upon this appeal whether the-counterclaim shows an acceptance of the engine or not, and we do not so determine, because in any event the defendant,, for a breach of the special warranty to the effect that the engine was powerful enough to pull a 36x60 Avery separator, was entitled at least to recoup bis damages, whether he was entitled to the other remedy or not.

It is unnecessary to discuss the cases referred to by counsel for appellant, because it is very plain that the facts in this case clearly distinguish it from the cases cited. Here the counterclaim is based upon a breach of a special warranty, without any conditions attached thereto, and therefore, whether defendant accepted the engine or not, he is entitled to recoup his damages. The conditions respecting the second warranty set out in the contract apply exclusively to that warranty and have no reference to the first. It follows, therefore, that the order of the court below was right and must be affirmed.

By the Court. — The order overruling the demurrer to the counterclaim is affirmed.