Nichols & Shepard Co. v. Chase, 103 Wis. 570

103 Wis. 570 | Wis. | 1899

Cassoday, C. J.

There is evidence tending to show that, before signing the order for the machines, Mr. Chase called on Mr. Hichmcm, the plaintiff’s state agent, located at Milwaukee, and examined a sample machine like those ordered; that on the afternoon of Friday, August 2,1895, at the farm of Mr. Chase, the machines in question were first tested; that such test was continued the next day (Saturday, August 3, 1895); that 'during that time they threshed 1,300 bushels of grain (oats, barley, and wheat and oats mixed) and some peas; that such test was in the presence of the plaintiffs local agent, Harmer; that wben they first started up the mill bothered a little — the fanning mill did not do very good work,— but it was fixed, and soon got so it worked pretty fair; that on Saturday the separator would not work right, would not separate the grain from.the straw as it should — wasted grain; that on Monday, August 5, 1895, it rained very hard, and no attempt was made to do any threshing; that on Tuesday," August 6, 1895, they finished threshing at Mr. Chase’s farm, and the machines were then taken to the farm of Mr. Stroup, about a half a mile distant, and were there further tested in the presence of Harmer and an expert of the plaintiff, and they finally quit work at Stroup’s on Wednesday, August 7,1895, and, after the plaintiff’s agent had paid Stroup $2 for loss of time, after that no more tests were made of the machines.

On the part of Mr. Chase, there is evidence tending to prove that, although the stacker and automatic bagger worked satisfactorily, yet the separator failed to fulfill the warranty, and that the plaintiff’s local agent and its expert who witnessed such tests so admitted. On the contrary, there is testimony on the part of the -plaintiff tending to prove that the grain was in bad condition to be threshed; that the machine was fed too fast by Mr. Chase’s servants (that is to say, they threshed oats at the rate of seven and one-half bushels per minute, whereas four bushels per minute is very good threshing when grain is in good condition); and that Mr. Chase refused to render friendly assistance and cooperation in making the separator a practical success.

On the same day of that final test (Wednesday, August 7, 1895) Mr. Chase wrote the plaintiff as follows:

“ Ladoga, Wis., Aug. 7th, 1895.

“Nichols & Shbpaed Oo.:

“Dear Sir — -I got one of your new separators this season. We cannot make it clean or separate. I will try it again' to-day. If you want a trial, send a man at once. I live ten miles west of Fond du Lao, on the Fond du Lac and Brandon road. Tour nearest station is Fond du Lao. Tour local agent, Hanner, is here, and a man from Milwaukee is here. They do not seem to understand the machine.

. “ Tours truly,

“ A. L. Chase.”

That letter was received by the plaintiff August 8, 1895. On the next clay (August 9, 1895) the plaintiff’s local agent, Mr. Ilarmer, sent a letter by a messenger to Mr. Olíase, to the effect that he had just received a telegram from the plaintiff’s state agent, Mr. Hiekmcm, saying that he would be there that afternoon, and would insist on haAdng an opportunity to make the separator work; that, if he had any word for him, to send it by the bearer; that Mr. Olíase replied that he would see Mr. Hiehnam, when he came, and have a settlement with him.

There is further evidence on the part of the plaintiff tending to prove that on that same day (Friday, August 9,1895) Mr. Hiekman visited Mr. Olíase, with the plaintiff’s manufacturer and expert in threshing machines from the, home office, for the purpose of making the separator work as warranted, but that Mr. Olíase, while admitting that the stacker and bagger worked satisfactorily, absolutely refused to give any such opportunity,.and demanded a return of the notes he had given; that on the next day (Saturday, August 10' 1895) Mr. Olíase took to his farm another machine, known as the Huber separator, which he had previously purchased; that on that same day Mr. Ohase wrote the plaintiff this let-

“Fond du Lac, Wis., Aug. 10, 1895.

“Niohols & Shepakd:

“Gentlemen — Having had your separator on trial, audit not having worked according to contract, your agents not being able to make it work after a fair trial, I hold it subject to your order. Please send notes and contract, and avoid further trouble. A. L. Chase.”

The evidence further showed that August 16, 1895, Mr.. Chase again wrote the plaintiff that he held the separator and stacker subject to its order, and demanded the notes he had given therefor; that September 9,1895, Mr. Chase again wrote the plaintiff to the same effect, and further that the machines were in his way, and that he wanted them removed at once; that, after the machines were so tested at Stroup’s, Mr. Chase took them to his place, and kept them there until the latter part of October, 1895, when he removed the separator, stacker, and bagger, and all the machinery so purchased, to the place of the plaintiff’s local agent, Mr. Ilarmer, while in his absence, and left them there, without any permission' from Mr. Ilarmer, or his wife, or any one.

By accepting the order of Mr. Chase for the machines, and shipping and delivering them to him, on or about July 20, 1895, the contract of purchase, and all the provisions thereof, whether written or printed, became binding upon both parties. The several questions submitted to the jury, and the charge of the trial court thereon, are all on the theory that the contract of purchase is for one entire and inseparable machine, whereas the contract is for the purchase of three separate machines,- — -a separator, a straw stacker^ and an automatic bagger. Moreover, the contract specifically provided, in effect, that, if any part of the machinery could not be made to fill the warranty, such part was to be immediately returned to the place where it was received, and the plaintiff was to have the option either to furnish another machine or part of a machine in place of the one that failed, or to rescind the contract to that extent, and that the failure of any separate machine, or any part thereof, should not affect the contract or liability of the purchaser for any other separate machine, or for any parts of such machine as should not be defective. It is true, there was a clause written in the contract by Hiekmcm, at the request of Mr. Chase, to the effect if the separator did not do first-class work in every respect, as talked, then the separator was to be taken back at any time in 1895, but that in no way modified the contract as to the stacker and bagger. Such radical disregard of the express terms of the contract' by the trial court necessarily calls for a reversal of the judgnient, unless the errors have been waived by the failure to take the necessary and timely exceptions.

The general exception to the whole charge and every part thereof is insufficient, and is without significance, under the repeated rulings of this court. But after the plaintiff had proved, by way of defense to the counterclaim, that, just before and at the time Mr. Chase signed the order for the machines, he and Mr. Hielcmam, thoroughly talked over the prices of each of the separate articles mentioned therein (that is to say, the price of the separator, the price of the stacker, and the price of the automatic bagger), the court excluded testimony tending to prove that each of those machines was put in the order at a separate and stipulated price, and as to what such price was. The court also refused to submit to the jury the question whether the stacker failed to fill the warranty, and also whether the automatic bagger failed to fill the warranty, and also whether, in case they found that any of the machinery could not be made to fill the warranty, such part Avas immediately returned by Mr. Chase to the place where he received it, and also whether Mr. Chase gave to the plaintiff the option either to furnish another machine or part of a machine in place of the one that failed, or to rescind the contract to that extent. Exceptions to such rulings and the refusal of the court to set aside the verdict and grant a new trial are sufficient, in our judgment, to authorize us to correct an error running through the Avhole trial, so radical and decisive as the one mentioned. Upon the undisputed evidence, the plaintiff was entitled to recover the purchase price of the stacker and the automatic bagger.

Assuming that the separator failed to fulfill the warranty, and that such failure was admitted by the plaintiff’s local agent as early as Wednesday, August 7, 1895, or even the day before, still, by the terms of the contract, Mr. Ohase was bound to give the plaintiff written notice at Battle Creek, Michigan, by registered letter, as well as its local agent, stating particularly what parts and wherein it so failed. No such notice was sent to the plaintiff until Wednesday, August 7th, and the same was received by the plaintiff the next day; and on Friday, August 9, 1895, Mr. Hiehmcm appeared with such home expert, with the avowed purpose of making the separator work, but no opportunity was given so that they could make the attempt. And yet the contract expressly required that the plaintiff should have reasonable time to get to the machine, with its workmen, from Battle Creek, Michigan, and remedy the defect, and that Mr. Ohase should render to the plaintiff friendly assistance and co-operation in making the separator a practical success. And yet it is manifest from the evidence that no time nor opportunity was given to the expert from Battle Creek to make the machine work. The contract goes still further, and provides that, if the first workman from Battle Creek should not leave the machine working satisfactorily, Mr. Ohase should give a second notice, similar to the first, and allow another workman to be sent for that purpose. The question whether such notices were given was not submitted to the jury, and there is no pretense that any such second notice was given at all. Manifestly, the plaintiff, contrary to the express terms of the contract, was deprived of an opportunity of trying to make the separator work as agreed, and was, moreover, in case the separator was defective, deprived of its option to furnish another in its place, or to rescind the contract to that extent.

The clause written into the contract, as mentioned, to the effect that if the separator did not do first-class work in every respect, as talked, it should be taken back at any time in. 1895, did not deprive tbe plaintiff of the other provisions of the contract, giving it such opportunity to make it do first-class work, or to replace it with another separator. The terms of the contract may be severe upon Mr. Chase, but they were deliberately entered into by him and the plaintiff, and courts are powerless to make contracts for parties. The case is unlike Kingman & Co. v. Watson, 97 Wis. 596.

By the Court.— The judgment of the superior court of Milwaukee county is reversed, and the cause is remanded for a new trial.