Fox v. Boldt

• Citation: 178 N.W. 467,172 Wis. 333
• Parties: FOX ET AL. v. BOLDT.
• Decision Date: 03 July 1920
• Court: United States State Supreme Court of Wisconsin

172 Wis. 333

178 N.W. 467

FOX ET AL.

v.BOLDT.

Supreme Court of Wisconsin.

July 3, 1920.

Appeal from Circuit Court, Grant County; George Clementson, Judge.

Action by Freeling Fox and another against Edward Boldt. Judgment for plaintiffs, and defendant appeals. Reversed and remanded for new trial.

Action to recover on promissory notes given for the purchase price of a tractor. Defense, breach of warranty. Defendant and his brother formed a partnership, to conduct the business of threshing grain, about August 1, 1918. The brother had an old separator, and it was agreed that he should buy a new 26-46 Case separator, and defendant would buy the tractor to run it. Plaintiffs were engaged in the farm machinery business at Platteville. August 1, 1918, defendant purchased from them a 12-25 H. P. Fair-Mor tractor. The contract therefor was in the nature of a written order, and was as follows:

“Geo. Fox & Sons, Platteville, Wisconsin.

Sold to: Edward Boldt. Address: Platteville, Wisconsin, R. F. D.

Order No. 204.

Date sale: Aug. 1, 1918.

Terms: See terms below.

When wanted: Aug. 5th.

Date filled: Aug. 8, 1918.

Charge.

Ship to customer. Route: Milw. Ry.

The following goods as per prices and terms on this:

1 12-25 H P Fair-Mor tractor, f. o. b.

+---------------------+
                ¦Janesville ¦$1,400 00¦
                +-----------+---------¦
                ¦Frt        ¦21 37    ¦
                +-----------+---------¦
                ¦           ¦$1,421 37¦
                +---------------------+
                

Conditions: The customer is to deposit $100.00 with order as per attached receipt, and give notes for the following amounts and due at time indicated:

+----------------------+
                ¦Jan. 1, 1919  ¦$300 00¦
                +--------------+-------¦
                ¦March 1, 1919 ¦$500 00¦
                +--------------+-------¦
                ¦Mar. 1, 1920  ¦$500 00¦
                +----------------------+
                

It is understood that customer may make payments in any amount or amounts in advance of due date. As indicated above, the price does not include freight, which is to be paid by customer on receipt at the depot.

[Signed] George Fox & Sons, Agent.

[Signed] Edward Boldt, Purchaser,

Per Frank L. Fox.”

“Platteville, Wisconsin, Aug. 1, 1918.

No. 269.

Received from Ed Boldt

+---------------------------+
                ¦Deposit on tractor ¦$100 00¦
                +---------------------------+
                

Geo. Fox & Sons,

By Free Fox.”

The tractor arrived at the depot in Platteville August 6th. At that time defendant noticed that the hole in the drawbar was worn. He was told by one of the plaintiffs that this was the result of testing it out at the factory, and for the time being he thought no more of it. The next day the tractor was taken to the farm of one of defendant's neighbors, where they were going to thresh. They started threshing on August 8th, and the engine soon developed a hot box. The expert who was present to start the engine loosened the boxing, and this caused the engine to knock. They ran along about one-half capacity during the rest of the day. The next day they ran about one-half capacity, with considerable knocking in the engine. On August 12th they ran about one-half capacity. One of the plaintiffs was there, and told defendant that, when they got the new separator, the tractor would be O. K. He said the belt pulley on the cylinder of the old separator was too small. The engine was still knocking, and the kerosene pump leaked. Plaintiffs put on a new pump. There was considerable spark plug trouble, overheating, and knocking on the 13th and 14th of August.

Owing to rain, they did no more threshing until August 20th, when they could not start the engine. They telephoned plaintiffs, and one of them came out, took some gasoline from his car, and started the tractor, at about 11:30. They kept the tractor running over the noon hour, and continued to thresh about one-half capacity. The next day they had considerable spark plug trouble, and defendant went to Platteville and got a new set of spark plugs, which did not seem to remedy the trouble. One of the plaintiffs said they would fix the tractor so that it would run in good shape, and just as soon as the new separator came everything would be O. K. The new separator came August 23d. The tractor did not work any better on the new separator. Fox was notified, and he said:

“We will fix it so it will pull the insides out of the new separator.”

On August 28th Mr. Townsend, designer of the tractor and manager of the Townsend Manufacturing Company, which manufactured the same, came out to fix the tractor. He worked on the engine all day. He recommended a new drive pulley on the separator, two inches smaller than the one they were using. They got the pulley he recommended, and ran along on August 29th until 4:30, when the intake valve in the engine broke. They could not use the tractor until the intake valve was finally replaced on September 10th. In the meantime they ran the separator with a 15 horse power portable engine. This engine ran it in first-class shape.

There was no threshing between September 10th and September 16th because of wet weather. They then attempted to move the separator with the tractor. Freeling Fox was operating the tractor, and, going down a hill, threw out the clutch and broke both clutches on the drive gear. The clutch sleeve had too much play on the crank shaft. It was worn too much and was too loose. New clutches came, and were put on, on the 18th. On the 19th they started to thresh. It ran fairly well, feeding it a little over half capacity. No more threshing was done until September 30th. They could not get the engine started until half past 10, and after it was started it did not seem to develop any power at all. Fox was notified, and he said he would get a man out from the factory to fix it. He did not come until the middle of October. He looked the engine over, and said the cylinder head was leaking water into the kerosene pump, and sent the old cylinder head back to the factory, and a new one was sent from the factory to take its place. About a week later a representative came from the factory, and put the new cylinder head on, and said:

“When you are ready to thresh, we will come out and run this for you, and see that it runs all right.”

He came again the Tuesday before Thanksgiving (no threshing having been done in the meantime), put on a new carburetor, started out about 8:30, ran along all morning, and threshed 95 bushels. About 11:30 he was adjusting some part of the engine, and the belt pulley ran tight. In attempting to get the belt pulley off, he broke it to pieces. He said, “Now we are done.” There were four stacks of grain open, and defendant said, “now we will have to go and hire another tractor.” He said:

“All right, go and get another one; I have done all I can do, but I see that I can't pull it.”

Three days later defendant saw one of the plaintiffs and told him to get the tractor; that he was perfectly satisfied that it could not do the work, and he was through with it.

As matter of defense defendant alleged that plaintiffs warranted that the tractor would run and operate a 26-46 grain separator; that the horse power of the engine was 12-25, 12 tractor pull drawbar, 25 by belt, and that it was agreed that plaintiffs would give defendant a written warranty that the tractor would run and operate said 26-46 separator; and by way of counterclaim it was alleged that the written contract between the parties failed to express their agreement, and that it did not include such warranty, and reformation thereof was prayed, so that it should express the warranty as above stated. It was also alleged that the tractor was a secondhand tractor.

At the close of the evidence the court directed a verdict in favor of the plaintiffs, for reasons which will more fully appear in the opinion. From the judgment entered on such verdict, the defendant brings this appeal.

Jesse J. Ruble, of Platteville, for appellant.

Kopp & Brunckhorst, of Platteville, for respondents.

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

[1][2] The contract between the parties was in writing. It contained no express warranty, and parol evidence to show a verbal warranty was not admissible. Ohio E. Co. v. Wisconsin-Minnesota L. & P. Co., 161 Wis. 632, 155 N. W. 112. The statute (section 1684t15, subsec. 4) provides that--

“In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose.”

There was therefore no warranty that the engine would develop any particular horse power, or that it was suitable for any purpose, either express or implied, coupled with the contract of sale. The contract, however, called for a new tractor. While this is not so specifically stated in the written order therefor which constitutes the contract between the parties, it is nevertheless implied from the circumstances of the case. Where a farmer orders a certain machine from a dealer in machinery, there is an implication that the order is for a new machine, and the contract cannot be satisfied by the delivery of a used, secondhand, or rebuilt machine (Grieb v. Cole, 60 Mich. 397, 27 N. W. 579, 1 Am. St. Rep. 533), and there is an implied warranty that the machine delivered pursuant to the order is a new machine.

Defendant alleged in his answer that...