61 Wis. 623 | Wis. | 1884
The learned circuit court in this case directed a verdict for the defendant, because it appeared from the testimony that the carriage made and tendered for the defendant’s intestate was not just like the Ball carriage, which was the model selected. The plaintiff testified that the order was for a carriage just like the Ball carriage. He
We think the court erred in not submitting the case to the jury upon the evidence given on the trial. Doubtless, the plaintiff was bound to show that the carriage tendered was as good in every respect as the model; that in style, size, general appearance, etc., it was like it. Or, to state the proposition in the usual form, the plaintiff could not recover .unless he showed a full and substantial compliance with the contract on his part. It was essential that the carriage tendered should be as good in all respects as the model, and conform in size, style, and appearance to it. This, we think, was what the parties understood by the contract; nothing more. To say that the parties intended that the two carriages should be precisely alike in every unimportant particular, that there should not be the least difference between them in any part, however slight, would be placing upon the language used a forced-and unreasonable construction. It is impossible for any mechanic to make even two spokes precisely alike, so that a glass, or possibly the naked eye, cannot detect some slight difference between them.
One of the witnesses, on the part of the defendant, who was a carriage-maker, testified, in substance, that if he should receive an order to make a carriage just like another, he should feel bound to build one as good in every respect as the model, and as much better as he could, of the same
Besides, it must be borne in mind that the defendant did not refuse to accept the carriage because it was not such as was ordered; but the refusal to accept was placed upon the distinct ground that no legal contract had ever been máde to purchase- the carriage. The case was litigated upon this ground alone, as the elaborate opinion of Mr. Justice Casso-dat on the former appeal shows. See 55 Wis. 427. Now the defendant seeks to change his position and justify the refusal to accept on the ground that the carriage tendered was not such as was ordered; that it did not comply with the contract.. This objection, at this late day, comes with bad grace, and is hardly consistent with the rules of good faith and honest dealing. The defendant should have said, when the carriage wTas finished and he was called upon to take it, that it was not such a carriage as he had contracted for — that it was not like the Ball carriage, and objected to receiving it on that ground. But this he did not do. The refusal to accept was placed upon the ground that he never bought the carriage and did not want it. This furnishes an additional reason for submitting the case to the jury upon the evidence given on the trial.
By ike Court. — The judgment of the circuit court is reversed, and a new trial ordered.