Bannon v. C. Aultman & Co.

• Decision Date: 20 October 1891
• Citation: 49 N.W. 967,80 Wis. 307
• Court: Wisconsin Supreme Court
• Parties: BANNON v. C. AULTMAN & CO.

80 Wis. 307

49 N.W. 967

BANNON

v.C. AULTMAN & CO.

Supreme Court of Wisconsin.

Oct. 20, 1891.

Appeal from circuit court, Dane county; ROBERT G. SIEBECKER, Judge.

Action by Patrick H. Bannon against C. Aultman & Co. to recover money paid by plaintiff to defendant as the price of a threshing-machine. From a judgment in plaintiff's favor defendant appeals. Affirmed.Morris & Morris, for appellant.

F. J. & C. F. Lamb and J. M. Olin, for respondent.

COLE, C. J.

In this case the plaintiff seeks to recover the consideration which he has paid for a thresher which the defendant company sold him with an express warranty that with proper use and management the machine would do as good work as any other of its size made in the United States. The plaintiff claims to have fairly tested the machine, and found it defective, and not fulfilling the warranty, so he returned it to the place and person where it was received. He gave two negotiable promissory notes for the purchase money, one of which he has paid, and the other has been negotiated, so that he is liable to pay it to the holder and owner. He sues for the full consideration paid and agreed to be paid, and his right to recover that amount cannot, under the circumstances, be disputed, unless he has lost the right by failing to do something which the contract required him to do. The ingenious counsel for the defendant has assigned 20 errors to the rulings of the court below, and which he relies on for a reversal of the judgment; but it will not be necessary to notice them in detail. Our view of the main question involved will practically dispose of the case.

The defendant admits in its answer that the machine was sold by E. L. Phelps, its agent, to the plaintiff, at Madison, and that Phelps had authority to make such sale, having the charge of the machine, and the right to offer it for sale, and to sell it. The plaintiff signed a printed order or contract for the machine, which contains the conditions of the sale as first made. The material clause of this contract provides that, if inside of five days from the day of the first use the machinery shall fail to fulfill the warranty, written notice shall be given the defendant company, and also the local agent from whom the same was purchased, stating wherein it failed to fulfill the warranty, and a reasonable time allowed them to get to the machine and remedy the defect. If the machinery could not be made to fill the warranty, the defective part was to be returned to the place where received, and another furnished which would perform the work, or the money and the notes given for the purchase price returned. The machine was delivered to the plaintiff about the 26th of July, 1888, and was set up for use on the 6th of August. On the first day's trial the machine proved defective in many important respects. The agent, Phelps, was present in the afternoon of the day, and was informed of the defects, and what parts had broken. He looked the machine over, said it was properly set up, and suggested some changes. But the machine did not work well when these changes were made, and it never, in fact, was changed or repaired so as to do good work as a thresher. This the testimony most clearly and conclusively proves. At the day of the trial of the machine the plaintiff had not accepted it, except conditionally, and had not given his notes for the purchase money. When urged to settle and give his notes according to the contract, he positively refused to do so, told the agent he was not satisfied with the machine, that it did not do good work, offered to take it back to the place where he received it, or told the agent he surrendered it to him where it was, and that he was through with it. The agent then said to the plaintiff that he would give a longer time to try the machine than the contract allowed,--that he would give all the time the plaintiff wanted for the purpose,--and that the defects would be remedied, and the...