Fox v. Wilkinson

• Citation: 113 N.W. 669,133 Wis. 337
• Parties: FOX ET AL. v. WILKINSON ET AL.
• Decision Date: 05 November 1907
• Court: Wisconsin Supreme Court

133 Wis. 337

113 N.W. 669

FOX ET AL.

v.WILKINSON ET AL.

Supreme Court of Wisconsin.

Nov. 5, 1907.

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

Replevin by J. H. Fox and others against C. W. Wilkinson and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Defendants sold to plaintiffs a traction engine for $400 and an old horse power. By written agreement the purchasers were accorded “ten days' trial on this engine, and said engine must do good work and be in good shape. If engine wheels and pinions break this year 1906 by cause of defect, same will be sent new.” Plaintiffs received the engine, had used it in threshing on some 6 or 7 different days, but during a period of more than 10 days after its receipt. On August 27th they had ascertained, to their own satisfaction, that the engine would not do good work, and had determined absolutely that they would not accept or keep it, and about noon on that day sent word to the sellers' agent to that effect. Thereafter, on the same day, and for about half of the following day, they continued to use the engine to run their threshing machine in order to finish up a job of threshing for a customer on which they were then engaged. Defendants, refusing to recognize the right of plaintiffs to rescind, got possession of the old horse power to which they were entitled under the terms of the trade. Plaintiffs, having demanded the same, brought replevin therefor. Upon trial the jury found a statutory verdict in replevin in favor of the plaintiffs, to the effect (1) that plaintiffs were entitled to the possession of the horse power; (2) that defendants unjustly took and unjustly detained the same; (3) $60 value; and (4) plaintiffs' damage $8. But in response to two special questions submitted by the court of its own motion they found (1) that “the plaintiffs determined absolutely on August 27th that they would not accept and keep the traction engine”; (2) that “after they had thus determined they proceeded with the use of the engine to finish the threshing job at which they were then employed.” Upon this verdict the court denied plaintiffs' motion for judgment, and rendered judgments in favor of defendants for the recovery of the horse power or for its value, from which judgment the plaintiffs appeal.T. L. Cleary, for appellants.

A. W. Kopp (Kopp & Brunckhorst, of counsel), for respondents.

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

One having a right of choice between two inconsistent positions who exercises that choice is finally concluded and confined to the rights and remedies appropriate to the position so chosen, and excluded from those consistent only with the repudiated one. Since such choice is merely mental, any unambiguous act consistent with one and inconsistent with the other of the elective positions will be deemed conclusive evidence of such election. Smeesters v. Schroeder, 123 Wis. 116, 101 N. W. 363. When an article delivered in attempted satisfaction of a contract of or for sale is upon reasonable inspection ascertained to vary from the requirements of such contract, the recipient becomes vested with such a choice. He may repudiate it entirely as not being that which he purchased, or he may accept it either as satisfying the contract completely, or, under some circumstances, as satisfying it only partially, so that he may recoup its insufficiency or defect against the purchase price, or recover damages therefor. Fairfield v. Madison Mfg. Co., 38 Wis. 346;Park v. Richardson & Boynton Co., 81 Wis. 399, 51 N. W. 572; Smeesters v. Schroeder, supra. In the first case he refuses to become the owner of the article, in the latter he does become such. The two are inconsistent; hence, when he adopts either alternative, he can exercise no rights consistent only with the other position. Or concretely, if after ascertaining defects he exercises dominion and avails himself of benefits to which he could be entitled only as owner, he so declares his election to become such that he cannot afterward deny the obligations of such position, or claim the immunities which would have resulted upon a rescission. Churchill v. Price, 44 Wis....