146 Wis. 261 | Wis. | 1911
The appellant insists that the evidence does not support the first, second, third, and fourth findings of the jury, and that the court should have changed the answers of the jury in each instance, and that if the court did not see fit to do so it should have granted a new trial. We think there was ample evidence in the record to sustain the answers of the jury to the first, second, and third questions of the verdict. In fact the. preponderance of the evidence supports these findings. Whatever difficulty the case presents arises
The contract of sale contained the following provision:
“If inside of six days from the day of its [the engine’s] first use it shall fail in any respect to fill this warranty, notice shall be given the Hart-Parr Company at their office at Charles City, Iowa, by registered letter or telegram, stating particularly wherein it fails to fill the warranty. . . . The use of said engine after the expiration of the time named in the above warranty shall be evidence of the fulfilment of the warranty, and full satisfaction to the undersigned, who agrees thereafter to make no further claim on the Hart-Parr Company. . . . Neither shall the fact of any local or traveling agent or expert of the company rendering assistance of any nature after the above warranty has been concluded, operate as an extension of the conditions thereof.”
The plaintiff did not have a copy or duplicate of this warranty until about September 1st. He used the machine in threshing some peas at his own farm on August 16th or 17th, and on August 19th he started to thresh at the farm of a neighbor and concluded his work there on the evening of the 20th. This apparently was the only work plaintiff was able to do until after the expiration of six days from the date on which the engine was first started. Manifestly, the actual time available to make a test of the engine was rather short. On August 22d the plaintiff wrote the defendant and in' his letter said:
“I will need some expert help in learning to1 start the engine and get the full power out of it. I and Mr. II. Hine had lots of trouble in starting the engine when we stopped with the belt on. I want to start Thursday morning, want your man here by that time.”
This letter is indefinite, but it does inform the defendant that the services of an expert would be required to enable the plaintiff to get full power out of the engine. Eull power would obviously be understood to mean the amount or quantity of power guaranteed by the contract of sale. By the
This does not appear to be a case where tbe plaintiff got sorry for having made tbe purchase and was looking for some-subterfuge whereby be co-uld avoid tbe contract. On tbe contrary, be seemed to be entirely willing to give tbe engine a fair trial, and to keep and use it if it could be made to do tbe work as guaranteed. Witbin tbe six-day period tbe defendant was notified that tbe services of an expert would be required to get tbe full power, which we think means tbe guaranteed power, out of tbe engine. Tbe letter, in effect, -stated that tbe engine was not furnishing tbe required power and also that it was very difficult to start it with tbe belt on. Tbe defendant acted on this notice and treated it as sufficient by writing tbe letters of August 23d and 26th. It is true, Howard’s first visit was not made at tbe instigation of tbe defendant after it bad received tbe letter of August 22d. But
By the Court. — Judgment affirmed.