Ohio Electric Co. v. Wisconsin-Minnesota Light & Power Co.

161 Wis. 632 | Wis. | 1915

Siebecker, J.

The written order of the G-as Company for the vacuum cleaners and the plaintiff’s written acceptance thereof constitute the contract of purchase. The rule is that in the absence of fraud and mistake parol evidence of antecedent or contemporaneous verbal agreements of the parties to a written contract is inadmissible to contradict, alter, or modify the written contract. Wiener v. Whipple, 53 Wis. 298, 10 N. W. 433; Jackowski v. Ill. S. Co. 103 Wis. 448, 79 N. W. 757; Ady v. Barnett, 142 Wis. 18, 124 N. W. 1061.

An inspection of the written order discloses that the vacuum cleaners ordered and purchased are therein specified by their known trade-name under which plaintiff offered them in the market. These facts preclude the claim that the contract of purchase implies a warranty of fitness. Sec. 1684Í — 15, Stats. 1918; La Crosse P. Co. v. Helgeson, 127 Wis. 622, 106 N. W. 1094; La Crosse P. Co. v. Brooks, 142 Wis. 640, 126 N. W. 3.

It is contended that the defendant was prejudiced by the refusal of the court to permit it to show that one of the vacuum cleaners was so defective that it could not be operated. The defendant insists upon the right of returning both of the cleaners under its attempted rescission of the sale by returning the cleaners on July 13th, after it had received them on or before the preceding 1st of May. The answer of defendant is silent on this subject. It is urged that the pleadings in the case were framed in justice’s court and the greatest latitude should have been allowed in the admission of evidence to permit defendant to show defects in the cleaners. Under the case presented defendant is not in position to invoke the right of such a disposition of the case. The facts show that it retained the cleaners for a period of two months before intimating that they were not satisfactory, and allowed two weeks thereafter to elapse before returning them to plaintiff. The retention of articles purchased is as effectual an acceptance of them as if the purchaser intimates to the seller that they are accepted. Kelsey v. J. W. Ringrose N. Co. 152 Wis. 499, 140 N. W. 66. Under the facts and circumstances of the case showing that defendant retained the cleaners for a period of nearly two and one-half months after having received them, it must be deemed to have accepted them as satisfactory under the contract of purchase. Sec. 16844 — 48.

By the Court. — The judgment appealed from is affirmed.