Smith v. Coleman, 77 Wis. 343

Smith v. Coleman

77 Wis. 343 | Wis. | 1890

Taylob, J.

The only exception taken on the trial and which is available to the appellant on this appeal is the exception taken to the introduction of the evidence on the part of the defendant tending to show that the plaintiff warranted that the engine was in good repair and would perform the work which the defendant leased it for. The *347contention on the part of the plaintiff is that the written memorandum which was signed only by the defendant was conclusive as to what the contract between the parties in relation to the engine was. We think the learned circuit judge was clearly right in overruling this objection. The evidence offered does not in any way contradict or change the writing signed by the defendant: That writing contains no contract of any kind on the part of the plaintiff’s assignors in relation to the matter, except that it implies that they consented that the defendant should have the use of the engine for thirty days, for the fixed sum of $3.50 per day. The case is clearly within the rule laid down by this court in the cases of Red Wing Mfg. Co. v. Moe, 62 Wis. 240; Hahn v. Doolittle, 18 Wis. 196; Frey v. Vanderhoof, 15 Wis. 398; Ballston Spa Bank v. Marine Bank, 16 Wis. 120, 136; Jilson v. Gilbert, 26 Wis. 637; Green v. Batson, 71 Wis. 54; Merriam v. Field, 24 Wis. 640; Collette v. Weed, 68 Wis. 428, 434; and Boothby v. Scales, 27 Wis. 626.

These cases fully sustain the ruling of the learned circuit judge in this case. The ruling is not in conflict with the cases in this court which hold that when there is a written contract for the sale of chattels, which writing contains an express warranty as to some matter in regard to the thing sold, no other express warranty can be shown by 'parol proofs. Merriam v. Field, 24 Wis. 640; Boothby v. Seales, 27 Wis. 626, 633. In the case at bar, the written memorandum was not signed by the plaintiff’s assignors, and it contains no agreement of any kind on their part. It is clear, therefore, that the parol evidence offered by the defendant tending to show that at the time of his leasing the engine, and as a consideration for his so doing, they warranted the engine to be in good repair and fit to perform the work for which he leased it, does not in any way contradict or vary the contract on the part of the defendant.

*348The exception to the instructions given by the learned judge is too general to be regarded on this appeal. There was no error in refusing to set aside the verdict and grant a new trial. There was certainly sufficient evidence to sustain the verdict, notwithstanding the contradictory evidence of the plaintiff’s witness, Marshall. The credibility of the two witnesses'was for the jury, not for the court. The learned circuit judge having expressed Ms satisfaction with the verdict, and such verdict being sustained by evidence, this court will not interfere.

The appellant contends that this court should, upon this appeal, pass upon the question of the right of the circuit court to set aside the judgment taken by default in the action. We think there is very grave doubt as to the right of the plaintiff to avail himself of any error, if there be any, in setting aside such judgment on his appeal from this judgment. It is doubtful whether the record in the case brings before this court the proceedings upon the motion to set aside the default in the action. But, as it is evident from what appears in this record that the appellant must have received and accepted the costs awarded to Mm by the court as a condition of opening the default of the defendant, he has waived any right to complain of such order. Having received from the defendant the benefit of the order on his part, he cannot object to the defendant’s claiming the benefit of the same order on his part. If the plaintiff ever had a right to appeal from such order, he has waived it by accepting the costs awarded to him as the condition upon which the order was granted to the defendant. Cogswell v. Colley, 22 Wis. 399; Flanders v. Merrimac, 44 Wis. 621; Webster Glover L. & M. Co. v. St. Croix Co. 71 Wis. 317, 319.

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