131 Wis. 122 | Wis. | 1907
The appellant assigns as error that the verdict submitted fails to cover all the issues in the case which were for the jury. Eor the purpose of determining what questions should be submitted to a jury in cases where a special verdict is called for, we first consider the issues made by the pleadings, then how many or which of these issues have been eliminated by admissions on the trial, by uncontradicted evidence
The single question submitted to tire jury in the instant •case covers all material controverted questions of fact which remained when the evidence for both parties closed. It did not use the words “express warranty,” but it covers the controverted facts which were claimed by the defendant to constitute an express warranty in this case, and it is the better for this quality. As answered it is sufficient under the evidence in this case to which it applies to negative the existence of any express warranty. But the defendant contends that, notwithstanding this negation of express warranty, there was an implied warranty that the manufactured article was reasonably fit for the purposes for which it was known by the manufacturer thereof to have been intended, and that this legal conclusion follows from these facts, viz.: The defendant, a manufacturing corporation, desired a machine for punching and riveting steel strips about fifty-four inches in length, and for reasons of economy attempted to fit out an old press which it had with attachments for punching and riveting, and ■employed the plaintiff, a manufacturer, to do this work for $180. Before closing the contract the plaintiff was shown the •old press so to be fitted up. It was apparent from the length of the steel strips to be> punched, the number of holes to be made at one stroke, and the width of the old press that the punching attachments could not be so placed on the old press in connection with the riveting apparatus to be attached thereto that the punching stroke would be in a direct line with the application of the power which moved the stroke. A plan or model for the construction of the riveting device was furnished by the defendant to the plaintiff, but no plan or model for the construction of the punching attachment was fur
“In executory contracts for a specific purpose, especially by manufacturers, there is an implied warranty that the article delivered shall answer the purpose for which it was designed.”
But the court held in that case that the defendants were entitled to prove, if they could, that it was the weakness of the boat or the negligence or the want of skill of the plaintiff or his agents, and not the defendants’ defective or unskilful workmanship, which caused the unsuccessful operation of the machinery. In McQuaid v. Ross, 85 Wis. 492, speaking of the doctrine of implied warranty in general, it is said “to he founded on an actual or presumed knowledge by the vendor, as manufacturer, grower, or producer, of the qualities and fitness of the thing sold for the purpose for which it was intended.” In T. B. Scott L. Co. v. Hafner-Lothman Mfg. Co. 91 Wis. 667, 65 N. W. 513, it is said:
“It is undoubtedly the rule, as contended for by defendant, that where manufactured articles are sold for a particular purpose, and the purchaser does not havp an opportunity for inspection, but trusts to the judgment of the seller, there is an implied contract that such articles will come within the description of those contracted for, and be merchantable for the particular purpose intended. Merriam v. Field, 24 Wis. 640; Benj. Sales, § 657.”
“We are unable, however, to find much force in this suggestion. It might have significance if the question related to the construction of the boiler itself, and applied to inherent defects, or those which were not as readily observable to the-other party as to the manufacturers; but the matter of the fastenings to the boat was open and as much exposed to the inspection and judgment of the appellants as to the manu-*129 facturera, and the requirements would seem to be as much within the knowledge of the manager, the captain of the boat, and more especially the chief engineer, who had immediate charge of the machinery, as to any one.”
After holding that the alleged misrepresentation was a' mere expression of opinion upon, or confidence in, the mode or sufficiency of the fastenings, and not intended or understood to be in the nature of a contract, the court passes to the question of implied warranty, and disposes of that as follows:
“We have, as already stated, found that here there was no express warranty, and there can be no implied warranty, that the work and materials furnished were suitable and adapted to the purpose, in respect to the defect which it is claimed existed here, where it was open, and as plainly observable to the vendee as it was to any one. Jones v. Just, L. R. 3 Q. B. 197; Kellogg B. Co. v. Hamilton, 110 U. S. 108, 3 Sup. Ct. 537; Dushane v. Benedict, 120 U. S. 630, 636, 7 Sup. Ct. 696.”
See, also, Davis Calyx D. Co. v. Mallory, 137 Fed. 332, 69 C. C. A. 662.
In the instant case the press upon which the attachments were to be made belonged to the purchaser, who was also a manufacturer. The purchaser must be presumed to have known the length of the iron strips which he required to have punched and the width and all dimensions of the press. The contract required two attachments, one for riveting and one for punching, to be put on this same press. The vendee furnished the manufacturer a model for the construction of the riveting attachment. The jury having negatived the claim of express warranty made by the purchaser, if we assume for argument’s sake that the purchaser, being defendant, can then fall back on an implied warranty which he has not pleaded, we discover, first, that his motion non obstante veredicto was properly denied, because the-implied warranty in any event would not cover the greater part of the contract, which related to the riveting device which was built according to the pur
It is argued that the court erred in charging the jury that, as to the question submitted, the burden of proof was upon the defendant. The question was interrogative in form: “Did the plaintiff agree,” etc. ? The court said: “The burden of proof as to this question is upon the defendant.” The jury had already heard the version of the plaintiff and that of defendant. The instructions of a court to a jury must be construed with reference to the subject matter under discussion, like all other spoken or written language. The jury knew the position that defendant took upon that matter and with reference to that question. The jury also knew the position plaintiff took upon that matter and with reference to.that question. The charge of the court in this particular was therefore clear to a jury of ordinary intelligence.
“The party upon whom rests tbe burden of proof does not lift that burden by merely producing a preponderance of tbe •evidence. He may produce a preponderance — that is, be may produce evidence of slightly greater convincing power to that .given or produced by bis opponent,- — -but still bis evidence may be weak and leave tbe mind in doubt. In order to entitle a party to a finding in bis favor, bis evidence must not only be of greater convincing power, but it must be such as to satisfy •or convince tbe minds of tbe jury of tbe truth of bis contention.”
To tbe appellant this instruction seems “self-contradictory, illogical, misleading, and therefore erroneous.” These undesirable qualities are found by appellant because tbe jury
“were told that tbe burden as to this question was upon tbe defendant, and that such burden meant tbe proving of what■ever fact tbe question submitted for determination, by tbe preponderance of tbe evidence, and that a preponderance of tbe evidence meant tbe greater convincing power. Yet in that 'immediate connection they were told that a party might meet this burden of proof by producing evidence of a greater convincing power than that produced by bis opponent and yet not lift this burden, because, although tbe evidence was convincing, nevertheless it might be weak and leave tbe mind in doubt. We cannot conceive bow convincing evidence or evidence of convincing power could be weak and leave tbe mind In doubt.”
The matter of the misconduct of the jury seems to have been handled by the learned circuit judge with skill and propriety. After the jury had returned their verdict in this case, the quarrel in the jury room was made a subject of investigation by the court before the discharge of the jury, and two of the jurors were found guilty of contempt of court for striking one another in the jury room during the deliberations on their verdict in this case, but thereafter all the jurors agreed to this verdict, and there was no claim made by the jurymen that the agreement of either was the result of coercion. Counsel now argue that because the disagreement which gave rise to the offensive language, which in turn caused the blows, arose in the discussion of this case, the blows and violence necessarily affected the verdict by coercing one or the other of the parties engaged. But this overlooks the fact that no such claim was made by either of the jurymen, no dissent from the verdict expressed, and that the human frailty of anger may, and often does, arise from slight and unimportant causes on account of some side remark having little or no bearing upon the subject under discussion, or from some personal or offensive allusion. The mere fact that there was a quarrel in the jury room and that the quarrel reached that degree of violence which brought the parties to blows, while undoubtedly misconduct, is not necessarily misconduct affecting the verdict. The circuit judge, after he had punished the recalcitrant jurors, denied a motion to set aside this verdict and for a new trial based on this ground. His opportunities for determining whether or not the quarrel affected the verdict were most excellent. We cannot say that he erred in this decision, or that the transactions in the jury room naturally tended to coerce or threaten any member of the
After the plaintiff had produced its evidence in chief and rested, and the defendant had produced evidence in support •of the affirmative defenses in its answer and rested, and after the plaintiff had produced its evidence in rebuttal of the last-mentioned affirmative defenses, and the last witness for the plaintiff had been cross-examined, upon redirect examination of such witness by counsel for the plaintiff the following question was asked:
“Counsel [referring to counsel for defendant] has asked one or two questions here, Mr. Logeman, in which it was assumed that the plaintiff undertook to manufacture these attachments and fit them to the machine so that the machine would perform, or be able to perform, the work in question. Was there such an undertaking on the part of the plaintiff ?”
This was objected to as leading and calling for a conclusion, and the objection was overruled and proper exception taken, and the witness answered, “It was not.” We cannot approve of this ruling, and, were it not that the subject of the question had been already gone over by both parties in detail and this, was a final summing up on rebuttal, the judgment would have
By the Court. — The judgment of the circuit court is affirmed.