Merrill v. Nightingale, 39 Wis. 247

Merrill v. Nightingale

39 Wis. 247 | Wis. | 1875

LyoN, J.

I. If, after a fair trial thereof, the machinery failed to answer the purposes for which the plaintiffs knew it was ordered, or failed to perform as warranted by the plaintiffs, the defendants might have relieved themselves from all liability to pay therefor by refusing to retain it, and by returning or offering to return the same to the plaintiffs within a reasonable time after it was put up in their mill. Woodle v. Whitney, 23 Wis., 55. The defendants did not elect to take this course, but retained the machinery, and seek, in this action for the unpaid balance of the price thereof, to recoup their damages for the alleged breach of the contract of warranty. This they may lawfully do; and the measure of their damages for such breach, or, at least, a portion of their damage therefor, is the difference between the actual value of the *251machinery and what its value would have been had it been as warranted. Boothby v. Scales, 27 Wis., 626, and cases cited. Giffert v. West, 33 id., 617; Bonnell v. Jacobs, 36 id., 59.

The defendants introduced evidence of the damages suffered by them by reason of the alleged breach of warranty; and certainly it was competent for the plaintiffs to give testimony on the same subject. In view of the rule‘of damages above stated, proof of the actual value of the machinery was competent. Indeed, in the absence of such proof, the damages which the defendants seek to recoup cannot be ascertained. The actual value of the machinery is put in issue by the pleadings, and it cannot be error to admit evidence thereof.

The only plausible ground of objection to the testimony under consideration is, we think, that it was received before the defendants had given any proof of their damages. The order of proof is very much under the control of the trial court; but if the practice here adopted was irregular, it is not perceived how the irregularity could possibly result in harm to the defendants.

II. It is a verity in the case that the machinery was furnished for the purposes of the manufacture of straw board paper, the controversy being as to the numbers or kinds of such paper to be manufactured therewith. There was at least an implied warranty that the machinery was sufficient for the purposes for which it was furnished. The defendants gave testimony on the trial tending to show that the machinery was fully tested, and that neither No. 40 nor any other number or kind of straw board ]3aper could be manufactured with it. Clearly it was competent for the plaintiffs to rebut the defendant’s proofs by showing that, because of the unfitness of the water used in testing the machinery, or for any other reason, the tests were not fair or conclusive of the capacity of the machinery.

III, It is claimed that there is not sufficient evidence to support the verdict; that in any reasonable view of the testi*252mony, the verdict is entirely too large or too small. We do not think so. The damages for the cansos alleged in the counterclaims were unliquidated, and the testimony tending to show the extent or amount thereof is not positive or certain. In assessing those damages the jury had something more to do than merely to make a computation. They were required to determiné the weight of testimony, the correctness of opinions and estimates, and, generally, to make such assessment from uncertain, and, in some respects, unsatisfactory data. Unless it can be shown that there is no admissible theory of the case which will support the verdict, it should not be disturbed. Without entering into detail, we think the verdict can be sustained on the hypothesis (which is justified by the testimony), that there was no breach of warranty, but that the plaintiffs failed to furnish the machinery at the agreed time.

Eor that failure an award of between $1,300 and $1,500 damages is neither so large nor so small that the court can interfere with it, having due regard to the testimony on the subject.

Finding no error in the case of which the defendants can justly complain, we must affirm the judgment of the circuit court.

By the Qowrt. — Judgment affirmed.