Walter A. Wood Mowing & Reaping Machine Co. v. Calvert

89 Wis. 640 | Wis. | 1895

Winslow, J.

The issues in this case seem to us to have been fairly tried and correctly submitted to the jury. The jury were told, in substance, that if the machine did reasonably good work the plaintiff was entitled to recover; that if.it did not do such work the defendant was entitled to return it; that if he reasonably offered to return it, and the agent refused to accept it, the actual return would be thereby dispensed with, and that subsequent retention of the machine, subject to plaintiff’s order, would not defeat the defendant’s right to a verdict; that if the machine did not do good work, still the defendant could accept it and become liable on his note; that if, after Lightcap finished working on the machine, it did not do good work, and defendant knew or ought to have known that it would not do good work and could not be made to do such work, still, if he went on using it until his harvest was complete, this would be an acceptance of the machine; and, further, that if the defendant did not return, or offer to return, the machine, he is now liable on the note. All of these propositions are sound law, and they are applicable to the testimony produced in the case.

It is said that an instruction such as that approved by this court in Palmer v. Banfield, 86 Wis. 441, should have been given. That was a case quite similar in its facts to the present, and the court told the jury, in substance, that if the defendant ascertained bn Friday that the machine did not do good work, and used it on Saturday, not to test it further, but merely to complete the cutting of his grain and without expectation that plaintiff’s agent would come and make the machine satisfactory to him, such use would be an acceptance of the machine. It seems quite probable that a similar instruction would have been applicable to this case, but no such instruction was requested, and the rule is that, when the court has correctly charged the jury on the ma-m questions involved, if counsel desire additional or more specific instructions they must request them to be given or the omission cannot be alleged as error. Austin v. Moe, 68 Wis. 458.

It cannot be said in this case that the evidence shows, as matter of law, that the defendant used the machine to such an extent after Lightcap attempted to adjust it, or kept it so long without, offer to return, that his right to return is lost. The evidence tends to show that the repeated use of the machine was in fact but a series of trials, during which Lightcap was endeavoring to ascertain the defects and correct them. Clearly, while such trials were going on, the use of the machine would not be an acceptance. •

W e find no error in the record.

By the Oov/rt.— Judgment affirmed.