Milwaukee Rice Machinery Co. v. Hamacek

| Wis. | Oct 21, 1902

Dodge, J.

1. Several assignments of error are predicated upon admission of evidence over plaintiffs objection. First among these is the inquiry: “Did you buy that engine, relying upon your own judgment as to its condition?” which was answered in the negative. Another exception is predicated upon an analogous question: “In making this purchase, did you rely upon the representations made in the letter of May 9th, and was that part of the transaction, — was that part of the bargain ?” No error was committed in overruling these objections. The questions at issue were whether plaintiff made a warranty, and, secondly, whether defendant bought in reliance thereon. The latter was vigorously controverted. The defendant and the plaintiff’s salesman, Schult, gave contradictory narratives of the transaction between them at which the purchase was made; the salesman asserting that the defendant made full examination of the engine, and the defendant, on the other hand, asserting that he was unable to do so-, and desisted on the faith of the warranty that the engine was “as good as new in every point and particular,” and so notified plaintiff’s agent. The question whether or not he purchased in reliance upon that representation, or whether he substituted therefor Iris own examination of the engine and judgment based thereon, was one of fact, as to which he might properly testify, albeit the testimony relating to mental processes would have been easily overcome by conduct and circumstances.

Another exception was reserved upon the overruling of an objection to the question, “What is that engine worth now, in its present condition? Answer, $350.” The trial was had some fifteen months after the sale. During that period the engine had been run almost continuously, and, indeed, according to some evidence, violently. It had been in defendant’s possession, and had been by him taken apart, altered, and modified, and various parts changed, according to his idea of its requirements. The question before the jury was the value of that engine in its actual condition at the-time of the sale, not at a time so remote and so disconnected by changes and use as to be certainly, or even probably, variant from that at time of sale. The evidence was, therefore, as urged by the objection, incompetent, irrelevant, and immaterial, and it was error to admit it. if or can we assert that it was nonprejudicial. The defendant placed a very low valuation upon it at that time, lower than the jury in fact found for it at the time of its sale, and thereby gave the only direct evidence of the value of the engine, defective as it was claimed to be. It was certainly within reasonable possibilities that the fixing of a value of $350 at this time might well have influenced the jury toward placing a low value on the engine at the time of its purchase. To what extent it is, of course, impossible to say. For this error, therefore, there must be a reversal of this judgment.

Exception is reserved to the admission, of other evidence bearing upon the inference of an implied agency to' warrant in the salesman Schult. We do not stop to inquire whether any technical error was here committed; for the court took the question of Schult’s authority to warrant away from the jury, and decided it as matter of law favorably to the appellant.

2. Error is assigned upon the refusal of the court to direct a verdict for the plaintiff. Under this heading it is first contended that the words used in the letter of May 9th, “The engine is as good as new in every point and particular,” are mere words of general commendation, and are not capable of being construed into a warranty of any material fact. This position is wholly untenable. It appears clearly from the evidence that a second-hand engine may, for all practical purposes, be as good as a new one, — indeed, by reason of the smoothing of the surfaces playing against each other, it may be more effective for practical work, — but that from running an engine the various parts and bearings become worn and thus loosened, permitting escape of steam, -and impairing the safety and the efficiency of the engine, such wear frequently extending to the. point where the parts affected must be removed or treated, so as to bring their surfaces into exact contact again; that these conditions axe matters which can be ascertained by inspection of the various parts, at least by one skilled in the manufacture and repair of engines. In view of these facts, we can entertain no doubt that an assertion, by one having in his possession for sale an engine, that it is “as good as new in every point and particular,” is an assertion of a physical fact which he assumes to know, and on which a purchaser may properly rely, provided the defects be not such as to be obvious to him under the circumstances in which he purchases.

Under this heading, qlso, it is argued that an agent has no implied authority to warrant the quality or condition of what he sells, unless there be a custom from which to derive the implication. This is immaterial to1 the case as it was tried. The court substantially ruled that the agent or salesman, Schult, had no authority, and submitted to the jury no question of any warranty made by him.

3. At the close of the trial a motion was made to set aside the answers to the several questions of the special verdict and enter judgment for the plaintiff, and also to grant a new trial. Under this head it is urged that the answers to the third and fourth questions, finding the sound value and defective value of the engine, are unsupported by any evidence. We confess that tlie evidence is very scanty in support of either the $800 as sound value or the $495 as actual value, and some members of the court incline to the view that such answers are so without support that they should have been set aside. As the situation in this respect1 now presented is very likely to be changed upon another trial, we shall not deem it necessary to decide, or do more than express grave doubt.

The first question of the verdict is made the text for re-argument of the proposition that the selling agent, Schult, had no authority to' warrant the engine, and therefore he could not bind the plaintiff by any reaffirmation of what was declared in the letter of May 9th. Here, again, the appellant seems not to appreciate the attitude taken by the trial court. It was not suggested that the defendant’s recovery depended in any way upon any assertion or reaffirmation made by the agent. The court properly held the letter of May 9th to contain warranty, and, as there was no' dispute as to the authenticity of that letter, he held that the making of the warranty appeared as matter of law. He then submitted the next question in logical sequence, namely, whether defendant relied on that warranty. In submitting this question he instructed the jury that they were to weigh the evidence as to the transaction which took place between defendant and plaintiff’s agent, tending, some of it, to prove the purchase to have been made in expressed reliance on that warranty, and some, to the substitution of defendant’s own judgment, based on examination of the engine and entire nonreference to any warranty. Upon such instructions, which, by the way, were not excepted to-, the jury adopted the defendant’s own version. Those instructions served to broaden the question somewhat, and in their light the jury’s answer must be understood as affirming plaintiff’s knowledge and acquiescence in the sale *and purchase in reliance on the warranty confessedly made by it. We think, therefore, the verdict disposed of all tbe issues. By reason of tbe error in admission of evidence, however, it must be ordered:

By the Gourt. — Judgment reversed, and cause remanded for new trial.