Manny v. Glendinning, 15 Wis. 50

Manny v. Glendinning

15 Wis. 50 | Wis. | 1861

Lead Opinion

By the Court,

PAINE, J.

The instructions of the court below to the jury, are obnoxious to the criticism pronounced on them by the counsel for the appellants. They clearly imply that the rights of the plaintiffs, and the duties of the defendants, would be different, if the language used in making the contract was, that “ if the reaper did not do good work, it might be returned,” from what they would have been, if the language was, that “if it would not do good work, it might be returned.” We think no such difference exists, but that, the substantial meaning of the contract, in either form, was, that the vendor warranted that the reaper when properly put together and managed, would work as stated, and that if it did not, or would not, which is the same thing, it might be returned. These instructions, therefore, which imply that if the word “did" was used, the plaintiffs could not recover upon the same proofs which would entitle them to recover if the word “would" was used, would in volve a reversal of the judgment, if it did not clearly appear, as we think it does from the whole case, that the verdict and judgment are right, and that the jury, under proper instructions, must necessarily have found the same verdict. Whichever form of expression was used, the purchasers had the *53right to return the machine. They did return it, and the plaintiffs, by their agents, accepted it unconditionally. There is no conflict in the evidence upon this point. It fully appears as well from the testimony of the agent, as from that of the defendants. The instructions asked by the plaintiffs’ counsel, assume it as a fact. If the question, therefore, had been submitted to the jury, they could only have found that the reaper had been returned and accepted by the plaintiffs. This put an end to the contract. It was rescinded by the consent of both parties. It is true that if the plaintiffs had not accepted the reaper when returned, or perhaps if they had accepted conditionally, reserving their right to insist on the contract in case it was in fact such a machine as warranted, then their right to recover would depend upon the question whether it really was so or not. But if they take the property back without condition, that puts an end to the contract by their own consent, and they can no longer recover, even though they could show that the property really answered the warranty. 2 Story on Contracts, § 848, a; Towers vs. Barrett, 1 Term Rep., 136.

This being so, and there being no conflict in the evidence, so that the jury must have found against the plaintiffs upon this point, the error in the instructions ought not to reverse the judgment. Notwithstanding errors occur on the trial, still if the appellate court can see clearly from the whole record that the verdict and judgment are right and could not properly have been otherwise, it will not reverse the judgment. Booker vs. The State, 7 Blackf., 272; Casteel vs. Casteel, 8 id., 240; Carey vs. Callan's Ex’r, 6 B. Mon., 48; Routh vs. Bank, 12 S. & M., 190; Lobb vs. Lobb, 26 Penn. St., 331; Morris vs. Runnells, 12 Texas, 178.

The circuit court was clearly right in holding that the plaintiffs did not stand in the position of bona fide holders for value, so that any defense existing on the contract as against the original firm could not be set up against them. They were themselves members of the original firm and parties to the contract, and it would be a strange application of the rule protecting bona fide purchasers of negotiable paper, to say that a part of the vendors of an article with warranty, *54interest of the other vendors in the negotiable paper given in payment, and then enforce its collection, free from any legitimate defense on the contract.

The judgment is affirmed, with costs.

Rehearing

A motion for a rehearing was disposed of as follows :

By the Court,

Paine, J.

A motion for a rehearing was made in this case, and it was argued that although the law be as stated in the opinion already filed, still if the agent of the plaintiffs accepted the property back, in consequence of the false and fraudulent representations of the defendants as to the manner in which it worked, such fraud would avoid the effect of the acceptance, and the plaintiffs might still insist on the contract.

We think this is so, and if there were any evidence upon which a jury might properly have found fraud in the defendants, we should feel bound to reverse the judgment, and order a new trial. But we can discover no such evidence. There was some conflict in the evidence, it is true, as to the actual capacity of the machine. But there was nothing tending to show, that the defendants did not try it according to the best of their ability, or that they did not believe the representations they made as to its mode of working. This being.so, we still think the doctrine of the opinion already filed, applicable to the case, and that there was no evidence which would have warranted a different verdict. The fact that it might be possible on another trial, to show the representations to have been fraudulently made, is no reason for changing the decision. It might be said of every verdict, that if a new trial were had, different facts might be proved, which would change tbe law applicable to the case. But that abstract possibility is not a sufficient reason for ordering a new trial, so long as there is nothing before the court tending to show that such different facts exist.

The motion is denied, with costs.