43 Wis. 545 | Wis. | 1878
The first error assigned in this case relates to the charge of the court. Before proceeding, however, to consider the charge, it is proper to remark that the cause seems to have been tried on the theory that there was a rescission of the contract. It is true, no such defense is set up or relied on in the answer. The pleadings before the justice were oral, and the cause was tried in the circuit court without any further pleadings being filed. The plaintiff declared upon the note. The defendant answered, admitting the making of the note, but pleaded a failure of consideration, a special warranty of the machine, and a failure of the same to work as warranted. Subsequently, the defendant, upon leave, amended his answer by claiming damages for a breach of the warranty, by way of recoupment. But while this was the state of the pleadings, the entire evidence on the part of the defendant was directed to the point, and calculated to show, that the machine on trial did not fulfill the warranty, and that he returned it, or offered to return it, to the agents of the plaintiffs for that reason. This defense was controverted by testimony on the other side. But the whole case shows that the real question litigated was, whether, under the circumstances, the defendant had the right to rescind the contract, and had in fact rescinded it. Such being the question tried, without objection on either side, the variance between the answer and the issue really tried must be disregarded. Flanders v. Cottrill, 36 Wis., 564; Matthews and wife v. The Town of Baraboo, 39 id., 674. Keep
The learned circuit judge, while speaking of the warranty which the law implies on the sale of an article by the manufacturer, remarking that the law would imply that such article was free from latent defects, and reasonably fit for the use for which it was manufactured and purchased, proceeded to say further, that “ the taking of a written memorandum containing some express warranties upon other points, does not exclude a warranty which the law implies, that the article is reasonably fit for the use for which it is manufactured or purchased.7’ This charge was excepted to on the part of the plaintiffs. This charge was clearly inapplicable to the evidence, and, if unsound as a proposition of law, could not have prejudiced the plaintiffs, for this reason. It was admitted that there was a written warranty in and by which the machine was “ warranted to be well made, of good material, and, if properly operated, will do as good work, in grain or grass, as any other machine of its class in the market, in the same condition of crops and under the same circumstances.” This was the language of the express warranty, and it is very evident it is more extensive and broader in its terms than the one which the law would imply. The implied warranty would be satisfied if the machine were 'free from all latent defects and were a reasonably good reaper and mower. But in order to fulfill the written warranty, it was necessary that the machine, when properly operated, should do as good work in grain or grass as any other machine in the market, of its class. The charge was calculated rather to prejudice the defendant than the plaintiffs, because it assumes that if the machine answered the warranty which the law implies, by being reasonably fit for the use for which it was manufactured and purchased, this was sufficient.
Another instruction excepted to was the following: “If the jury find from the evidence that the machine for which the
No exception was taken to the charge wherein the jury were directed, in substance, that if, upon trial, the machine did not do good work, was in fact defective, and the plaintiffs, upon being notified, failed to put it in a condition to work well, the defendant had the right to return it; that an offer to return the machine after finding it defective, and a refusal to receive it, would have the same effect as though it had actually been returned. And in the same connection the jury were likewise
This brings us to the only remaining point we deem it necessary to notice: that is, whether the court erred in denying the motion for a new trial on the ground of newly discovered evidence. This newly discovered evidence is contained in the affidavit of Mr. Shrader. We have examined the affidavit, and think it furnishes no ground for granting the motion. The material facts stated in the affidavit are cumulative. It is true, he makes this statement as to what he observed or thought when he saw the defendant operating the machine at the time he called upon him: “The land,” he says, “Loomis was cutting upon, was sandy land, light and dusty, and I then saw that he did not oil the machine as often as I would require a man to oil a machine of mine under the same circumstances.” But this statement does not show, nor does it justify the inference, that the failure of the machine to work as warranted was in consequence of its not being sufficiently oiled. The defendant claimed that the machine worked badly because of the heating of the pitman box; but what caused that heating, was a question not satisfactorily explained by the evidence on the trial. It surely was not claimed by the plaintiffs that it was caused because the machine was not properly oiled. Nor does Shrader say that it was. He merely says that he would require a machine to be oftener oiled than this was. We therefore think, upon this affidavit, that the motion for a new tidal was properly denied.
By the Court. — Judgment affirmed.