| Wis. | Jun 15, 1873
We are not prepared to say that the learned circuit judge was in error when he held that the words in the note, '■'■for two mills,' remit as soon as sold,” did not vary the contract of which the note is the evidence. Of course, the words “for tvjo mills ” show on what account, or for what, the note was given; but the remaining words, “remit as'soon as sold,” are quite unintelligible to us. The plaintiff testifies that they were inserted for the purpose of giving the defendant the right to pay the note before the expiration of ninety days. But when it is considered that the defendant had that right already, by the terms of the note, — the same being payable on or before ninety days, etc., — this testimony must be taken with some allowances for the imperfection of human recollection. Then, further, the note did not draw interest until after ninety days, and it is extremely improbable that the defendant feared that he would not be permitted to pay it when he pleased.
The theory of-the defendant is, that the words were inserted to show that he was a bailee and not a purchaser of the mills. If that be true, the parties failed entirely to use language which admits of that construction, or which has any reference to the matter of a sale or bailment of the mills. We are of the opinion that the words last above quoted are inoperative to affect the contract contained in the balance of the note, and that the judge ruled correctly in that behalf.
But we think there is error in the instruction to the jury that the alleged breach of warranty was the only defense to the action.
If the mills are in the hands of the defendant merely as a bailee, for a special purpose (and the testimony tends to show this fact), there being no pretense that he has sold or converted the property, there seems no room for doubt that there is an entire failure of consideration for the note. This is a defense
Had an instruction been prayed for, submitting to the jury the question as to whether the transaction between the parties was a sale or bailment, and charging them that, if a bailment, the plaintiff could not recover on the note, in the absence of any evidence of a conversion of the mills by the defendant, it should have been given. And although no such instruction was asked, still we think it was error to instruct the jury that there was no defense to the action other than that of a breach of warranty.
For this reason there must be another trial.
By the Court. — Judgment reversed, and a venire de novo awarded.