Charles Baumbach Co. v. Gessler

• Decision Date: 03 May 1892
• Parties: CHARLES BAUMBACH CO. v. GESSLER.
• Court: Wisconsin Supreme Court

82 Wis. 231

52 N.W. 259

CHARLES BAUMBACH CO.

v.GESSLER.

Supreme Court of Wisconsin.

May 3, 1892.

Appeal from superior court, Milwaukee county; R. N. AUSTIN, Judge.

Action by the Charles Baumbach Company against Max Gessler to recover the contract price of certain goods sold to defendant. Defendant obtained judgment. Plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by LYON, C. J.:

The action is to recover the contract price of 500,000 “Cachet Wafers.” The defense is that the wafers delivered were not of the quality contracted for; were not suitable for the purpose for which they were purchased; and that, after the wafers had been sent to him, defendant rescinded the purchase, and offered to return them to plaintiff. A more full statement of the case will be found in 79 Wis. 567, 48 N. W. Rep. 802, the case having been here on a former appeal. The jury returned a verdict for the defendant. A motion for a new trial was denied, and judgment for defendant entered pursuant to the verdict. Plaintiff appeals from the judgment.McKenney & Wambold, for appellant.

Rose & Bell, for respondent.

LYON, C. J., ( after stating the facts).

The bill of exceptions is not certified to contain all the testimony; hence we cannot review the testimony on this appeal, but must assume that it supports the verdict, and all statements of fact in the instructions given the jury. This is a complete answer to all exceptions to the instructions save one. After stating to the jury that the law permits one who purchases goods, and finds them unfit for the uses intended, to retain the goods and recoup his damages against the price, or to return, or offer to return, them to the vendor, the learned trial judge said: “Mr. Gessler, the defendant in this case, thereforedid perfectly right in notifying Mr. Baumbach, or the Baumbach Company, the plaintiff in this case, that he refused to accept these goods, and notified them that they were subject to their order.” Immediately thereafter the judge submitted to the jury the question whether the wafers were suitable for the purpose intended, the plaintiff knowing what that purpose was. It is maintained on behalf of plaintiff that in the sentence above quoted the judge took the whole question from the jury. If the sentence stood alone, there would be force in the claim. But it does not stand alone. It is perfectly obvious from what precedes and follows it that the judge said what he did...