Aultman Co. v. McDonough

• Citation: 85 N.W. 980,110 Wis. 263
• Parties: AULTMAN CO. v. MCDONOUGH.
• Decision Date: 30 April 1901
• Court: Wisconsin Supreme Court

110 Wis. 263

85 N.W. 980

AULTMAN CO.

v.MCDONOUGH.

Supreme Court of Wisconsin.

April 30, 1901.

Appeal from circuit court, Marquette county; Robert G. Siebecker, Judge.

Replevin by the Aultman Company against Thomas McDonough. From a judgment in favor of plaintiff, defendant appeals. Reversed.John Barry and Hall & Sheldon, for appellant.

Fowler & McNamara, for respondent.

CASSODAY, C. J.

It appears from the record that July 16, 1898, the plaintiff sold and delivered to the defendant a rebuilt second-hand separator, and a ten-horse Star engine on trucks, with the usual fixtures and extras, for $650, of which $200 was paid down in cash, and three notes, of $150 each, secured by chattel mortgage on the property, taken for the balance; that after using the same for some time the engine was found to be unsatisfactory to the defendant, and so it was returned, and a rebuilt Gaar-Scott engine taken in its place, with an agreement on the part of the defendant to pay to the plaintiff $300 additional, evidenced by three promissory notes, of $100 each, and all the six notes amounting to $750, secured by chattel mortgage on the property. When the first note for $150 became due, the defendant made default and refused payment, which had been demanded, and thereupon the plaintiff demanded possession of the property covered by the mortgage, which the defendant refused to give. May 3, 1899, the plaintiff, as such mortgagee, commenced this action of replevin for the property covered by the second mortgage. The defendant, by way of answer and counterclaim, denied certain allegations of the complaint, and admitted others, to the effect: That he purchased the first machinery in July, 1898, and made the cash payment and gave the three notes and chattel mortgage, as stated, but alleged that the engine was to be rebuilt, and was warranted and guarantied to be in perfect working order, and that it would perform the work of running the separator and attachments, and would be perfectly satisfactory. That the defendant purchased such property relying wholly on such warranty and guaranty. That it was not rebuilt as agreed, but was fraudulently covered with a thick coat of paint to conceal the rust and worn condition. That it was so old, worn out, rusted, and dilapidated and out of repair as to be impossible of use. That at the request of the plaintiff the defendant continued to try and use the same, and to put and keep the same in repair, on the promise of the plaintiff that it would make the matter right, and afterwards that it would procure another engine for the defendant as soon as it could get a suitable one; that it would make good the defendant's loss of time and damage by reason of such defects. That the defendant lost two-thirds of his time in consequence, and did not do more than 10 days' work therewith during the two months and over that he was trying the same. That, by and in consequence of such failure and breach of warranty, the defendant was damaged in the sum of $450. The answer also admitted that the plaintiff took back such first engine, and delivered to the defendant another, for which the defendant agreed to pay $300 additional, and did give three notes in addition to the three already held by the plaintiff, all secured by chattel mortgage on such second engine and machinery, as stated, but alleged that the defendant took such second engine on the plaintiff's agreement and warranty that it would make good to the defendant the damages he had sustained by reason of such failure of the first engine, and warranted and guarantied the second to be rebuilt, and to work as good as new, and to do the work of running the separator and corn sheller perfectly and satisfactorily; that the second engine failed to do such work as warranted and guarantied; that, in addition to lesser defects, the pump and injector of the engine were defective, worn, and out of order, and would not work, and in consequence thereof the whole engine was useless; that the plaintiff was forthwith notified of such defects, and it agreed to replace and repair the same, but failed; that, in pursuance of the plaintiff's request to keep trying to use such engine, the defendant lost one-half his time, and his custom and patronage, and was obliged to quit work; and that in consequence of such breach of warranty of the second engine the defendant sustained damages to the amount of $400. The answer prays judgment that the aggregate amount of damages which the defendant has thus sustained, of $850, should be applied as an offset to the payment and satisfaction of the six notes and chattel mortgage, and that such notes be canceled and surrendered, and that the defendant should recover from the plaintiff, in addition, by way of damages, $100, together with his costs and disbursements herein. The plaintiff, replying, took issue with the several allegations of such counterclaim. At the close of the trial the jury returned a special verdict to the effect (1) that there was a breach of the plaintiff's warranty upon the second engine delivered to the defendant; (2) that the second engine, as delivered to the defendant, was worth $275; (3) that the second engine would have been worth, had it been as warranted by the plaintiff, $750; (4) that the defendant's damages by virtue of his loss of time and expenses for repairs in running the second engine were $85.25; (5) that the defendant's damages by reason of loss of time and expenses for repairs in running the first engine were $228. Upon such verdict the court adjudged and decreed that the plaintiff deliver to the defendant the notes and mortgage described in the complaint, and...