La Crosse Plow Co. v. Brooks

• Decision Date: 26 April 1910
• Parties: LA CROSSE PLOW CO. v. BROOKS ET AL.
• Court: Wisconsin Supreme Court

142 Wis. 640

126 N.W. 3

LA CROSSE PLOW CO.

v.BROOKS ET AL.

Supreme Court of Wisconsin.

April 26, 1910.

Syllabus by the Judge.

In an action for the sale price of an article, if the defendant counterclaims for a total breach of warranty of fitness, pleading tender back of the article, and on the trial wholly defeats plaintiff's claim, it is irregular for the jury to pass upon the title to such article, and a finding in that regard should be treated as surplusage.

If a person orders of another a known and described article and obtains it, he takes the same without implied warranty that it will prove suitable for the use designed, or his use.

If in addition to circumstances in the last foregoing proposition the purchaser, upon ordering the article, states to the dealer the purposes for which he desires the article, that does not change the rule that upon stating the exact subject of his purchase he takes without implied warranty of suitableness for the particular purpose.

Appeal from Circuit Court, Winnebago County; George W. Burnell, Judge.

Action by the La Crosse Plow Company against George W. Brooks and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Action to recover a balance due for farm machinery of various kinds sold and delivered by plaintiff to defendants. The amount claimed was $367.14, with interest. Defendant counterclaimed for breach of express warranty respecting a gang plow which was one of the implements charged in the account. The claim was that the plow was bought on the faith of specific assurance of its fitness for the work for which it was designed and purchased; that upon trial it failedto satisfy the guaranty and proved useless for the purpose it was purchased; that thereupon defendants offered to return the same, but plaintiff refused to receive it.

As the case was submitted there is no question but what plaintiff was entitled to recover according to the prayer of the complaint, unless it was liable for a reduction because of warranty as to the plow.

The evidence in respect to the plow was, substantially, this: Plaintiff was a manufacturer, among other farm implements, of a gang plow of such combination character, that by some changes, readily made, it could be changed from a breaking to an ordinary plow, or from the latter to the former. Plaintiff had dealt with the defendants for quite a period of time, though there was no contract existing between the parties when the particular transaction occurred. Defendants knew plaintiff was the manufacturer of a combined gang plow, which was scheduled in its advertising literature with which defendants were familiar. They had been accustomed to serve plaintiff as sales agents under contracts which expressly, or by necessary inference, or both, negatived liability as warrantor of any of their machinery, except as to breakage from unsuitable material or workmanship. Although the season contract expired before the plow in question was ordered, defendants knew it was the custom of trade on plaintiff's part not to accompany sales of goods with warranty, except as indicated. Before the particular transaction they had been importuned by plaintiff's agents to sell some of its gang plows. Defendants ordered one for one of their customers. Such customer informed the defendants what he desired and it was agreed, that they should obtain for him one of plaintiff's make of gang plows of the size and character suggested. Pursuant thereto defendants ordered the plow, intending to obtain one of such character of plaintiff's manufacture. The order was by letter in this form:

“Omro, Wisconsin, Oct. 28, 1907.

La Crosse Plow Company, La Crosse, Wis.

Gentlemen: We have a customer that wants a foot-lift gang plow with two bottoms, one for stubble and the other for prairie breaker. He has a large tract of land in North Dakota, and 180 acres here, and wants to use it here this fall and ship it to North Dakota in the spring. 14-inch with one extra share each for the stubble bottom and two extra shares for the sod bottom. Please send this as soon as possible and give us the best terms possible.

Yours truly,

George W. Brooks & Son.”

The plow was forwarded and in due course delivered to the customer. There was evidence tending to show that it was not suitable for breaking sod land; that not being adaptible therefor as well as for ordinary plowing, it was useless to the customer; that it was accordingly returned to defendants and they offered to return it to plaintiff, claiming credit for the amount charged therefor. There was no evidence to sustain the claim that the plow was sold with express warranty, but the court held, under the circumstances, that there was an implied warranty that the implement was reasonably suitable for the work for which it was purchased, and submitted the cause to the jury to pass upon the question of whether there was a breach of such warranty and, if so, to assess damages for the breach. The jury found in defendants' favor, assessing their damages at the full sale value of the plow and its accessories, and adding to the finding “and the plow to be subject to the order of the plaintiff.”

Plaintiff claimed judgment on the undisputed evidence for the full amount of its demand, but the court, on motion, granted judgment for such amount less the charge for the plow and its accessories, and in the judgment established the status of the title thereto in plaintiff.

McConnell & Schweizer, for appellant.

Wilbur E. Hurlbut, for respondents.

MARSHALL, J. (after stating the facts as above).

The judgment in this case is rather novel. We speak of it in passing, so it may not be taken as a precedent worthy of being followed. Neither jury nor the court had anything to do with the title to the plow. The judgment, as the trial court viewed the...