99 Wis. 458 | Wis. | 1898
The first question requiring consideration is, Was the special warranty, relied on by plaintiff, forfeited by a failure to settle for the engine at the time of its deliv
The next and really only other question which need be noticed is, "Was there any evidence to support the finding of the jury that the engine was not of good material and well built, and not capable of doing as much and as well as other machines of like size and proportions? If not, then defendant’s motion for the direction of a verdict should have been granted, and' the court, failing in that, should have granted the motion to set aside the verdict as contrary to the evidence.
"Was the engine made of good material and well built? There is testimony that the cylinder head, piston head, and •cross head all broke at one time, but plaintiff testified that such occurrence was caused by the engineer allowing the cross head to get loose,— that it was his fault and not the fault of the machine; and the evidence all tended to show
Prom the foregoing it is manifest that there was no evidence to warrant the verdict that the machine was not well built and of good material. Moreover, the contract expressly required the purchaser to give defendant written notice of all defects, with reasonable time to repair the same, before declaring on the warranty, and the evidence shows that no written complaint was made involving the subject of faulty material or construction, so the issue in that regard should have been taken from the jury.
The only other element of the warranty in issue is, Was the engine capable, with proper management, of doing as much and as well as other machines of like size and proportions? We are unable to find satisfactory evidence in the record that notice, written or otherwise, was given to the defendant on that point. The most that can be claimed is that written notice was given that the engine would not do the work of operating plaintiff’s threshing machine with its attachments. Plaintiff’s version of the contents of the notice was that “ the engine would not do the work” It is mani
It follows that the judgment of the circuit court must be reversed, and the cause remanded for a hew trial.
By the Gourt.— So ordered.