39 Wis. 578 | Wis. | 1876
A number of exceptions were taken on the trial to the rulings of the court admitting or ■ excluding evidence. They will not be noticed, for the reason that we are satisfied that the charge of the court was calculated to prejudice the plaintiff, and that therefore there must be a new trial on that ground.
Among other things the learned circuit judge stated in substance to the jury, that from the bill of sale itself the law would imply a warranty that the lumber should be of a merchantable quality and of the kind set forth in the contract. But he observed that the supreme court had said upon these important questions there should be evidence taken to find out what the parties meant at the time of the sale, and that he left it to the jury to say what was the contract with reference .to this matter. In another part of the charge the circuit judge further stated or directed the jury, that if they should
The natural effect of this charge was, that the defendant was not answerable unless he expressly warranted the lumber to be merchantable. It will be seen that the court submitted the question whether there were any representations made by the defendant in regard to the quality of the lumber, and directed the jury that if they should find that such representations were made, then the plaintiff would be entitled to recover whatever would be a proper reduction for lumber which was not merchantable. It is obvious that under this charge the jury might have found for the defendant on the ground that he made no representations as to quality when he sold the lumber. Indeed, the charge is only susceptible of the construction that, in order to recover for a defect in quality, it was essential for the plaintiff to show that the defendant expressly warranted the lumber to be of a merchantable quality. The liability of the defendant is clearly placed upon that ground.
The circuit court seems to have misapprehended tire effect of the decisions of this court heretofore made in the cause. When the case was first here, as reported in 24 Wis., 640, this
Nor is it any answer to say that the error became immaterial because it appeared that the plaintiff, knowing what the lumber was, both as to its quality and quantity, toolc it by agreement as it was, in full satisfaction of the previous contract. It would be improper for us to express an opinion as
In regard to the claim for shortage, but an observation need be made. On the second appeal, this court held the contract ambiguous as to quantity. It was there said, whether the bill of sale called for 750 M. feet of lumber absolutely, or whether it was agreed between the parties that the rafts should be delivered and accepted for whatever lumber they contained — no specified quantity being fixed or contracted for,— were questions for the jury to determine from all the facts and circumstances. If the contract was for the sale and delivery of 750 M. feet, and the defendant failed to deliver the entire quantity, he would be bound to make good the shortage.
In this case the exceptions to the charge of .the court are incorporated in the bill of exceptions, which bears date March 9, 1875; but the exceptions do not appear to have been filed until March 22d, after a motion for a new trial, made upon the minutes of the judge, had been overruled. The counsel for the defendant insists that the exceptions must be disregarded, because too late. Sec. 2, ch. 194, Laws of 1874, provides that in actions thereafter tried, either party may, at any time before the close of the term of coixrt at which the action
By the Court.- — The judgment of the circuit court' is reversed, and a new trial ordered.