Woodle v. Whitney

23 Wis. 55 | Wis. | 1868

DixoN, C. J.

In this case we hold that the plaintiffs had a right to rescind the contract and recover' back the money paid. This right was not lost by taking the cultivators for trial. The plaintiffs could receive and test them, and, if found defective, return them and bring their action. This was the view of the court in Fisk v. Tank, 12 Wis. 303, which is fully sustained by the authorities there referred to, and by the late case of Reed v. Randall in the Court of Appeals, 29 N. Y. 358, though the court there seem to hold that the remedy by a return of the property to the vendor after the vendee has had an opportunity of examining it, and a rescission of the contract, is the only one which the vendee has to recover damages on the ground that the article furnished does not correspond with the contract. It is to be observed, however, that that was not a case of executory contract for the manufacture of articles to be delivered at a future day, as to which there is always an implied warranty that the articles delivered shall answer the purpose for which they were designed. We have no disposition to elaborate a proposition which we consider to be so well settled as that here involved ; and believing that the circuit judge was correct both in his findings of fact and conclusions of law, we must affirm the judgment.

By the Court. — Judgment affirmed.