115 Wis. 422 | Wis. | 1902
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
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
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
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
By the Gourt. — Judgment reversed, and cause remanded for new trial.