Harrington v. Downing

• Decision Date: 05 February 1918
• Citation: 166 N.W. 318,166 Wis. 582
• Parties: HARRINGTON v. DOWNING ET AL.
• Court: Wisconsin Supreme Court

166 Wis. 582

166 N.W. 318

HARRINGTON

v.DOWNING ET AL.

Supreme Court of Wisconsin.

Feb. 5, 1918.

Appeal from Circuit Court, Waukesha County; Martin L. Lueck, Judge.

Action by Timothy L. Harrington against M. W. Downing and others. Judgment for plaintiff, and defendants appeal. Affirmed.

On the 4th day of May, 1914, at the city and county of Waukesha, the defendants sold to plaintiff a certain cow, known as Jennie De Kol Pauline, No. 161,219, and warranted said cow to be sound. The plaintiff alleged in his complaint that at the time of said sale and warranty said cow was physically unsound, in that it was afflicted with a disease known as mammitis and had an infectious disease commonly known as contagious abortion, and claimed damages as and for a breach of said warranty of soundness. The case was submitted to a jury, and a general verdict was returned in favor of the plaintiff. From a judgment entered thereon, defendants appealed.Holt & Coombs, of Waukesha (Lockney & Lowry, of Waukesha, of counsel), for appellants.

Hennessey, Hennessey & O'Boyle, of Milwaukee (Vincent D. Hennessey, of Milwaukee, of counsel), for respondent.

OWEN, J.

Appellant contends that there was not sufficient evidence to justify submitting to the jury the question of whether the cow was afflicted with contagious abortion at the time of the sale, nor to sustain an affirmative finding in that behalf. We have carefully examined the evidence, and are satisfied that it was sufficient to take the question to the jury and to sustain the verdict. No useful purpose will be accomplished by a review and analysis of the evidence, and no more need be said upon this branch of the case.

In answering the allegation of the complaint that the cow was afflicted with a disease known as mammitis at the time of sale, the defendant alleged:

“That said cow, Jennie De Kol Pauline, was in all respects physically sound and clean, except that said cow was slightly afflicted in one quarter with a disease known as mammitis, of which mammitis said plaintiff well knew at the time of purchase.”

Thus defendants admit that the cow was afflicted with mammitis at the time of sale; the defense being that the plaintiff had knowledge thereof and accepted the cow with such affliction. This position was strenuously maintained by defendants throughout the trial. It is believed that the trial court in its charge to the jury fairly stated the position taken and maintained by the defendants in the following language:

“The existence of the mammitis being admitted, the question for you to determine in that regard is whether or not the plaintiff waived that defect or infirmity. The defendants have the burden of proof on that question of waiver. If you are satisfied to a reasonable certainty by a preponderance of the evidence that plaintiff was informed and knew of the mammitis before he accepted and paid for Jennie, then he waived any damage caused by such condition; but, if you do not so find, then you will find in favor of the plaintiff on the issue of waiver.”

It appears from the record that upon a motion for a new trial the attention of the court was for the first time called to section 1684t--49 of the Statutes, a constituent part of the uniform sales act, which provides:

“In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But if, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know, of such breach, the seller shall not be liable therefor.”

And the defendants contended that the case ought not to have been submitted to the jury, because there was no evidence that the plaintiff had notified the defendants that the cow had mammitis and that the case was improperly submitted to the jury, because the court did not charge that, in order to hold the defendants liable, it...