Peerless Reaper Co. v. Conway

79 Wis. 622 | Wis. | 1891

Lyon, J.

There can be no doubt that it is no impediment to the bringing of this action, that neither of the notes agreed to be given for the price of the reaper would, bad they been given, not have been due when the action was commenced; nor that the measure of damages, if the plaintiff is entitled to recover, is the amount for which the notes were to have been given. It is also clear that the contract requires the notes to be given upon the delivery of the reaper, and the obligation of the defendant to give them is not discharged or affected by the fact (if it be a fact), that the reaper failed to meet the requirements of the warranty. For breaches of the warranty,, the defendant has other legal remedies, and must resort to them, or he is remediless. The answer of defendant is by no means a model of clear and concise pleading. Rut, giving it the most favorable construction in favor of defendant which it will possibly bear, it is to the effect (1) that the reaper delivered to defendant was not so delivered as a performance of the contract by plaintiff, but only for temporary use, until it could deliver the reaper contracted for; (2) that, if delivered in execution of the contract, the reaper failed to meet the requirements thereof in several material particulars; and (8) that the reaper was worthless. The answer contains no counterclaim by way of recoupment of damages for breaches of the warranty. ‘

The testimony is overwhelming (indeed, is scarcely controverted) that the reaper was delivered to defendant under the contract, and in execution thereof, by the plaintiff. Such being the fact, the defendant can only relieve himself of the obligation to give the notes in one of two ways. He must show either (1) that the reaper did not comply with the warranty, and that because thereof he effectually rescinded the contract; or (2) that the reaper was worthless. The mere breach of the warranty, especially when no counterclaim is interposed by way of recoupment of the damages sustained thereby, is no defense to the action, either in whole or in part.

In order to rescind the contract it was necessary, by the terms thereof, for defendant to notify in writing the agent of plaintiff at Hillsborough, and the plaintiff at Canton, Ohio, or at its nearest branch office, of the defects in the reaper, and, if the same were not remedied by plaintiff, then to return the reaper at Hillsborough, where he received it. The defendant failed entirely to comply with any of these requirements. Hence there was no effectual rescission of the contract.

Was the reaper worthless ? The only fault found with it is that it did not lay the bundles of grain properly, and more labor was required to bind them. It appears that defendant cut all his grain with it, using it for that purpose both before and after this action was commenced. In view of these facts, it is impossible to hold that the reaper was worthless.

We conclude, therefore, that the defendant has failed to establish any defense to the action, and the verdict and judgment in the justice’s court should have been for the plaintiff for the agreed amount of the notes. This is doubtless the view taken of the case by the learned circuit judge.

The principles above enunciated are considered and established by this court in Herman v. Gray, ante, p. 182. They require no further discussion here. The only difference in the two cases is that in Herman v. Gray the action was upon the notes given pursuant to the contract there in question, while the cause of action herein is the refusal to give the notes called for by the contract. But those principles are common to both cases, and rule them both.

Our conclusion is that the circuit court properly reversed the judgment of the justice, and hence that the judgment of reversal must be affirmed.

By the Court.—Judgment affirmed.