40 Wis. 377 | Wis. | 1876
The main question in this case is, whether the
Tbis was an executory contract. The wood to be delivered was of a particular kind and quality. It was to be piled at a convenient place and within the requisite distance for loading. The defendants might insist upon these conditions in the contract, and refuse to accept the wood unless they were complied with. But if an inferior article of wood was delivered, the defects of which were perfectly patent and obvious to the senses, where the defendants had full opportunity for examination before acceptance, but they neither did nor said anything which would inform the plaintiff that they did not, accept the wood as fulfilling the warranty, what then are their rights? Can they, when sued for the contract price, insist that the wood delivered was of an inferior quality, or was not piled at the place where it should have been, and recoup their damages for these breaches of the contract? It seems to us the defendants are not in a position to claim the benefit of such a defense. If the defendants had had no opportunity to examine the wood before removing it, or if the defects were latent, such as cotild be discovered only after a trial, then a different rule might well obtain. But such is not the case. Here the defects were obvious and conspicuous, the defendants receiving the wood with full knowledge of its inferior quality and of the place at which it was delivered, without any notice to the plaintiff that it was not satisfactory and would not be accepted as fulfilling the terms of the warranty. Under these circumstances, had not the plaintiff the right to assume from their silence that they accepted the wood as a substantial compliance with the contract, and waived all objection that it was not piled at the proper place? It seems to us the plaintiff had the right so to assume from the conduct of the defendants. "We have therefore concluded to hold this rule in respect to an executory contract: that when the defects in the goods are patent and obvious to the senses,
It is obvious that there is a well founded distinction between the case at bar and the class to which Getty et al. v. Roundtree, 2 Pin., 380; Fisk v. Tank, 12 Wis., 276; Woodle v. Whitney, 23 id., 55; Boothby v. Scales, 27 id., 626; and Bonnell v. Jacobs, 36 id., 59, belong. In the latter class, the articles were manufactured or furnished for a particular purpose; the defect was latent, and could be discovered only after a trial. If the article delivered proved not to be fit for the purpose ordered, this court held that the vendee mightj “ without returning or offering to return it, and without notifying the vendor of its defects, bring his action for the recovery of damages, or, if sued for the price, may set up and have such damages allowed to him by way of recoupment from the sum stipulated to be paid.” Fisk v. Tank and Bonnell v. Jacobs.
The court found as a fact in the case, that prior to the time when the defendants received the wood, they had entered into contracts for the sale of hickory and rock-maple wood, and were obliged to take the wood of the plaintiff to fulfill these con
By the Gowrt. — The judgment of the circuit court is affirmed.