Kingman v. Watson

• Decision Date: 10 December 1897
• Citation: 97 Wis. 596,73 N.W. 438
• Parties: KINGMAN ET AL. v. WATSON.
• Court: Wisconsin Supreme Court

97 Wis. 596

73 N.W. 438

KINGMAN ET AL.

v.WATSON.

Supreme Court of Wisconsin.

Dec. 10, 1897.

Appeal from circuit court, Lafayette county; George Clementson, Judge.

Action by Kingman & Co. against George H. Watson to recover on four promissory notes. Judgment for defendant, from which plaintiffs appeal. Reversed.

This action was brought to recover upon four promissory notes, in the aggregate for the sum of $1,800, given by the defendant to the plaintiff August 27, 1891, for the purchase of a steam threshing machine outfit, including a Cyclone separator and a steam engine, sold by the plaintiff to the defendant. The notes were secured by a chattel mortgage on the same property. The defendant answered that the plaintiff warranted that all parts of the threshing-machine outfit were properly and perfectly made, and of good and perfect material, and would do good, perfect, and satisfactory work in threshing all kinds of small grain, and it was then worth, in cash, the sum of $1,800; that if it should be found by the defendant that the said outfit, or any part thereof, was defective or incomplete in any respect, or that it would not do good work, as so represented, or was not of the value stated, or was not of material as represented by plaintiff, then the defendant might return or offer to return the same to the plaintiff or its agents, and that the said plaintiff would thereupon return to this defendant any notes he might have given to plaintiff for such outfit, and any money paid plaintiff for the same; that relying on said warranty, and induced thereby, and believing said representations and warranty to be true, the defendant purchased said machine and outfit, and delivered to the plaintiff therefor the four notes described in the complaint. The defendant alleged that said representations and warranties were false, and were so known to be by the plaintiff when made; that upon the delivery of said machine and outfit the defendant proceeded to use the same, but it was imperfectly constructed, of imperfect and defective materials, and it would not and could not be made to do good work, and was of no use or value as a threshing outfit; that the defendant notified the plaintiff of such facts, and offered to return the same to the plaintiff, and at the plaintiff's request the defendant continued his efforts to make the said threshing outfit to do good work as warranted, but was utterly unable to do so; that thereupon, in the early fall of 1891, the defendant offered to return the same to the plaintiff, and demanded of plaintiff his promissory notes and chattel mortgage, but the plaintiff absolutely refused to receive back said machine, etc., or to deliver up said notes, or any of them. The defendant also set up counterclaims (1) for moneys and time expended in attempting to remedy the defects in said machine and to make it do good work, $400; (2) for damages sustained and business lost by the defendant by reason of said defective machinery, $1,000. The defendant demanded judgment that said notes and mortgage be surrendered and canceled, and for the damages he had so sustained. Plaintiff replied, putting the said matters in issue.

It appeared at the trial before a jury that the threshing outfit had been taken by the plaintiff and sold under the chattel mortgage, the net proceeds of which sale were $607.85. The defendant, Watson, testified that, the tenth day he ran the machine, Mr. Hewitt, claiming to be the general agent and business manager of the plaintiff, came to get a settlement. He was asked as to what occurred between him and Hewitt at that time, which was objected to by the plaintiff, the defendant's counsel stating that he expected to prove that the defendant at that time was not satisfied with the machine; that it had proved defective in various respects; that he so informed Hewitt, the general agent, and that he refused to settle for the machine, or to receive or retain it; and that Mr. Hewitt agreed with him that, if he would sign these notes, if there were any defects about the machine the company would remedy them. But the evidence was objected to by the plaintiff's counsel, and the court referred to the conditions of the warranty in the written contract, which was afterwards put in evidence by the plaintiff, and it was claimed that whatever statements were made in regard to the matter were in the written contract. The contract was in the form of an order, signed by the defendant and directed to the plaintiff, requesting it “to furnish or ship for the undersigned [the defendant] on or about the 26th day of August, 1891, in care of Sawdey & Erickson, the machinery and threshing outfit therein specified,” and contained the following stipulations: “I, the undersigned, agree to receive the above subject to the conditions named below, pay the freight and charges thereon from factory, and further agree to pay to your order on delivery the sum of $1,800, as follows [specifying the time and amounts for which the notes were to be given; notes to be dated from arrival of machine, to bear interest from date at eight per cent. per annum, to be given on your blanks, payable at Clarke, Hawley & Co. Bank of Warren, Ill.; and I agree to give as security a chattel mortgage on the property purchased.”“As a condition hereof, it is fully understood and agreed: (1) That this order is given subject to the acceptance of Kingman & Co., and that no promises, whether of agent, employé, or attorney, in respect to the payments, security, or to the machinery named, will be considered binding, unless made in writing, and ratified by the home or branch office. (2) That title to the said goods shall not pass until settlement is concluded and accepted by Kingman & Co.”“(4) The above articles are warranted to be of good material, well made, and, with proper management, capable of doing as good work as similar articles of other manufacturers. If said machine, or any part thereof, shall fail to fill the warranty within ten days of first use, written notice shall be given to Kingman & Co., Peoria, Ill., and to the party through whom the machinery was purchased, stating wherein it fails to fill the warranty, and time, opportunity, and friendly assistance given to reach the machine and remedy any defects. But if the purchasers fail to make it perform through improper management, or lack of proper appliances, or neglect to observe the printed or written directions, then the said purchasers are to pay all the necessary expenses incurred. If the defective machinery cannot then be made to fill the warranty, it may be returned by the undersigned to the place where received, and another furnished on the same terms of warranty, or money and notes to the amount represented by the defective machine shall be returned, and no further claim be made on Kingman & Co.”“Continued possession or use of the machine after the expiration of time named above shall be conclusive evidence that the warranty is fulfilled to the satisfaction of the undersigned, who agree thereafter to make no further claim under the warranty. * * * This warranty to be invalid and void in case the machine is not settled for when delivered, or if this warranty is changed, whether by erasure, addition, or waiver. (5) It is also agreed and distinctly understood that in case I, for any reason, do not take said machinery, I will pay you, as damages, an amount equal to the freight from factory to place of delivery and back to factory; cancellation of order being wholly optional with you. G. H. Watson, Purchaser.” The court admitted the evidence, not for the purpose of showing a different warranty from that expressed in the writing, but that a new arrangement was made,--a new contract, perhaps.

The defendant testified that Mr. Hewitt and Mr. Erickson came to see him; that they talked quite a while, and defendant refused to give the notes, stating that they were not in accordance with the bargain made, and that the machine was not what he was to have, and showed them different places where it had failed; that Mr. Hewitt said that if he would sign those papers that day, so that he could go back, he would guaranty that everything should be made right, and on these conditions he consented to run the machine and signed the notes. He was asked what he said to Hewitt about keeping the machine, and the court held that the circumstances under which the notes were given might be shown. He answered that he told Hewitt that he would not keep it under the conditions,--would sign no paper; that he told him of the defects in the machine, specifying them as poor pumps and injector, and told him he could not keep water in the engine, with its leakage. The court allowed the witness to testify, against the plaintiff's objection, that it was after this statement was made by Mr. Hewitt that he signed the notes, and Hewitt went away that same day. The court allowed the witness, against the plaintiff's objection, to proceed to state how the machine worked. He said that the machine did not work satisfactorily; cut the grain to pieces; took too much coal to run it; that the pump and injector did not perform their proper functions; they were a failure from the start. He testified in detail as to the manner in which the machine worked at different places where they threshed; that it cut oats badly, so that about one-fourth of the oats were not good. He testified to writing a letter to Russell & Co., the manufacturers of the machine, in relation to the defects in it, and he had received, and offered in evidence, a letter from the plaintiff, dated June 16, 1892, which was to the effect that it would instruct Mr. T. B. Strossnider to call upon him the first time he was in the vicinity, and look the rig over carefully and give it necessary attention. He said that Strossnider called on him soon after the date of the letter,--perhaps in two weeks; that he told him of the defects, and offered to fire...