Palmer v. Banfield, 86 Wis. 441

Palmer v. Banfield

86 Wis. 441 | Wis. | 1893

LyoN, O. J.

1. There is no claim in this case for damages for a breach of warranty, either express or implied, on the sale of the reaper and harvester in controversy. The question of warranty is, therefore, of no significance in the case, except as it bears upon the right of defendant to return the machine in case the sale thereof was absolute, as claimed by plaintiff. If the jury found the contract to be as claimed by defendant, under the charge of the court the question of warranty does not necessarily arise, for the jury were instructed that, if they so found, the defendant had a right to return the machine if not satisfied with it, although it may have done such work as would satisfy men generally. The right under such a contract to return the property may be stated a little too broadly in the instructions ; but no exception was taken thereto, and it stands as the law of this case. Certainly the rule thus stated allowed the defendant-to be dissatisfied with and to return the machine, even though there was no breach of any warranty in respect thereto, either express or implied. Neither is there any controverted question of reasonable time in which to return the machine involved in the case. If the defendant did not, by his use of the machine, destroy the right to return it, if otherwise he had such right,, it must be held as matter of law that he returned 'it, or rather that *446be effectually offered to return it (which amounts to the same thing), within a reasonable time after it came to his possession. So the question is not whether the offer to return was made within a reasonable time, but whether the defendant had any right to return the machine when he attempted to do so.

If the sale was absolute, as claimed by plaintiff, and there was a breach of an express or implied warranty of the machine, and if defendant accepted the machine after testing it and discovering its defects; or if the sale was upon condition that if dissatisfied with the machine the defendant might return it, and if defendant, after testing it, fully determined that it was unsatisfactory to him and he would return it, and afterwards accepted it,— in either case the right to return it was lost. The court instructed the jury that, if defendant ascertained on Thursday or Friday that the machine did not do good work, in the one case; or, in the other case, that he then determined he would return it as unsatisfactory,— if he used it on Saturday, not to test it further, but merely to complete the cutting of his grain and without any expectation that plaintiff or his agent would come there and make the machine satisfactory to him, such use was an acceptance of the machine as a compliance with the contract, and was fatal to his right to return it. We think the court stated the law correctly, and that the testimony justified the submission to the jury of the question-of acceptance.

It should be stated that when plaintiff took the machine to defendant he had with him an expert, who assisted in starting it. There is testimony to the effect that, without plaintiff’s knowledge, such expert told defendant’s son he would return on Friday and see how the machine worked; but he made no promise to go there on Saturday. Plaintiff informed defendant that he would remain at Cuba City (his home being in Galena) until Saturday, where he could *447be notified if the machine did not work right. He remained there until Saturday afternoon, but received no such notice. It is very doubtful whether the expert had authority to bind plaintiff by his promise to return on Friday, the plaintiff being present, acting for himself, although not in hearing at the time. But, waiving that question, the jury might well find from the testimony that defendant had no right to expect, and did not expect, that either plaintiff or the expert would return to defendant’s farm on Friday, or at any other time, or that either of them intended or promised to have anything further to do with the machine, unless notified that it did not work well.

2. It results from what is said above that the first and second instructions proposed by defendant are defective, in that they ignore the question of acceptance. They should have been qualified by adding to each a clause to the effect that if defendant accepted the machine in the manner above stated,— that is, by using it to finish his harvest after he had tested it and found that it would not do good work, or he determined that it was unsatisfactory and he would return it,— his right to return it was lost; and the question whether he did so return or offer to return it, or notify plaintiff of his dissatisfaction - therewith, within a reasonable time, would be thereby eliminated from the case. The third proposed instruction goes expressly upon the hypothesis that the defendant obtain a verdict. The verdict being for plaintiff, the instruction becomes inapplicable to the case.

3. On the trial the question was raised whether plaintiff owned the cause of action for the price of the machine. It was proved that he was the agent of the manufacturers for the sale thereof and other like machines, under a contract prescribing the terms on which alone sales should be made by him, and providing that if sales were made on other terms plaintiff should be charged with the machines thus *448sold as a purchaser. The sale of the machine in question was not made in accordance with such prescribed terms, and before this actiorr was commenced it was charged to the plaintiff as a purchaser and he paid the manufacturer therefor. Of course, he thus became the owner of the cause of action for the ¿mice of the machine.

4. Among the several errors assigned, one is as follows: “ The court erred in conveying to the said jury his opinions on the merits of the case by the manner in which he commented on the case and formulated his instructions to the jury.” The learned counsel for defendant stated in his argument that this is the main error on which he relies-for a reversal of the judgment,.and he explained in a very interesting manner how an honest judge may be unconsciously betrayed into actions and expressions in the presence of the jutry very prejudicial to the cause of one or the other of the parties. And so, while paying a high and well-deserved tribute to the integrity, ability, and desire to do exact justice in all cases of the judge who presided at the trial, he argued that this is a case of unconscious bias on the part of the judge against the case of the defendant, and sought to prove its existence from the record. It is almost, if not entirely, inevitable that he should fail. This court can only know from the record what the judge said and did on the trial. It is sufficient to say that the most searching scrutiny of the record not only fails to disclose the existence of any such bias, but it fails to raise even a suspicion of its existence. We find neither error nor impropriety in .any of the remarks of the judge on the trial which are referred to by counsel in support of his position. Neither do we find any error in the rulings of the court on the trial, or in the charge to the jury.

By the Court.— The judgment of the circuit court is affirmed.