Paige v. McMillan

41 Wis. 337 | Wis. | 1877

LyoN, <1.

Whether this was a sale on trial, as claimed by the learned counsel for the defendant, or an absolute sale with, warranty express or implied, it was the duty of the defendant, if he wished to rescind the contract, to return or offer to return the machine within a reasonable time. The question as to what is a reasonable time must to some extent be determined upon the circumstances of each particular case. Usually, perhaps, it is a question of fact for the jury; but the delay to return or offer to return the defective article may be so long continued that the court will hold, as matter of law, that the right to return it is lost. The general rule is, however, that the vendee must proceed with reasonable diligence to test the article, and, if it proves defective, must promptly notify the vendor of the defects therein and offer to return it. In the language of some of the cases, he must do so immediately after discovering the defects. The law is thus stated in Boothby v. Seales, 27 Wis., 626; and the opinion by Dixon, O. J., contains an elaborate discussion of the whole subject, with references to numerous cases which hold the same doctrine.

In the present case the defendant had ample opportunity to test the machine by the 1st of October, when he ceased to use it; and his delay from that time to November 14th to notify the plaintiff that it was defective, and to offer to return it, is entirely unexplained. True, the testimony tends to show that the machine was put up in the woods five miles from a railroad, and that the highways were in such condition that it could not be removed to the railroad until winter. The plaintiff’s manufactory is in Oshkosh, and the mill of defendant, in which the machine was placed, was 37 or 38 miles from Stevens Point. It was-probably necessary to take the machine to the railroad in order to transport it to Oshkosh. But these facts do not excuse the delay in the offer to return. Had the offer been made more promptly, it is possible that the plaintiff might have sold the machine to other parties in the neighborhood, or made some other advantageous disposition of it, without taking it to Oshkosh. It was but just that he should have had full opportunity to do so if he chose; and hence it is that the law requires the offer to return to be promptly made. Moreover, the plaintiff rendered the defendant seveial accounts, including the price of the machine, prior to the offer to return — the first of these as early as July 9; yet the letter of November 14th was the first notice given the plaintiff of the alleged defects in the machine.

Had the cause been submitted to a jury, and had the jury found that the offer to return the machine was made within a reasonable time, we might hesitate to disturb á judgment based upon such finding. But the cause having been determined without the intervention of a jury, we are required to review the evidence. As a proposition of fact, therefore, the evidence satisfies us that the defendant, in that he neglected, during the six weeks he was engaged in testing the machine, and • during the succeeding six weeks after he had ceased to use it, to offer to return it, or to notify the plaintiff that it was defective, is chargeable with laches, which defeats his right to return the property. This proposition controls the case, and renders it unnecessary to determine other questions argued at the bar. It follows that the plaintiff was entitled to judgment for the contract price of the gang edger in addition to the amount which he recovered. The plaintiff testified that the contract price of the machine was $275, while the testimony introduced by the defendant tends to show that it was only $260. It is the safer course to take the latter sum as the true one.

By the Oowrt. — The judgment of the circuit court is reversed, and the cause remanded with directions to that court to render judgment in accordance with this opinion.