Mfincke v. Falk
| Decision Date | 16 December 1884 |
| Citation | 61 Wis. 623,21 N.W. 785 |
| Parties | MFINCKE v. FALK, ADM'R, ETC. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Milwaukee county.
John A. Wall, for appellant.
Cotzhausen, Sylvester, Scheiber & Jones, for respondent.
The learned circuit court in this case directed a verdict for the defendant, because it appeared from the testimony that the carriage made and tendered for the defendant's intestate was not just like the Ball carriage, which was the model selected. The plaintiff testified that the order was for a carriage just like the Ball carriage. He said there were some differences between the carriage in question and the Ball carriage, which he deemed improvements, though the body, style, size, and general appearance of the two carriages were alike. But the circuit court ruled, in effect, that the plaintiff was bound to furnish a carriage just like the Ball carriage, and if it was not so the defendant was not obliged to receive it; that in order to recover the plaintiff must show that he fulfilled his contract; that a family carriage was an article of luxury, which was governed by peculiar rules, and that a substantial compliance with the contract was not sufficient. We think the court erred in not submitting the case to the jury upon the evidence given on the trial. Doubtless, the plaintiff was bound to show that the carriage tendered was as good in every respect as the model; that in style, size, general appearance, etc., it was like it. Or, to state the proposition in the usual form, the plaintiff could not recover unless he showed a full and substantial compliance with the contract on his part. It was essential that the carriage tendered should be as good in all respects as the model, and conform in size, style, and appearance to it. This, we think, was what the parties understood by the contract; nothing more. To say that the parties intended that the two carriages should be precisely alike in every unimportant particular, that there should not be the least difference between them in any part, however slight, would be placing upon the language used a forced and unreasonable construction. It is impossible for any mechanic to make even two spokes precisely alike, so that a glass, or possibly the naked eye, cannot detect some slight difference between them.
One of the witnesses, on the part of the defendant, who was a carriagemaker, testified, in substance, that if he should receive an order to make...
To continue reading
Request your trial
-
Lamborn v. Blattner
...Kellerman, 18 Mo. 509; Kunglig v. Dexter (D. C.) 299 F. 991; Brawley v. United States, 96 U. S. 168, 24 L. Ed. 622; Meincke v. Falk, 61 Wis. 623, 21 N. W 785, 50 Am. Rep. 157. The evidence shows that defendant accepted 67 barrels of the first order of 200, in which the weights ran approxima......
-
Pacific-Wyoming Oil Co. v. Carter Oil Co.
...... required.". . . See. also Line v. Mason, 67 Mo.App. 279; Meincke v. Falk, 61 Wis. 623, 21 N.W. 785, 50 Am. Rep. 157. These. cases illustrate the proposition that in the absence of a. specific provision in the contract ......
-
The Watkins National Bank v. The Cleveland, Cincinnati, Chicago & St. Louis Railway Co.
...169; Everett v. Saltus, 58 Wend. 474; Duffy v. Donovan, 46 N.Y. 223; Winter v. Colt, 7 N.Y. 288; Mooney v. Elder, 56 N.Y. 238; Meinche v. Falk, 61 Wis. 623; Davis v. 64 F. 411; Ballou v. Sherwood, 32 Neb. 689; Harris v. Chapman, 9 Utah 105; Frenzer v. Dufrene, 58 Neb. 436; Wallace v. Elevat......
-
Mitchell Manufacturing Co. v. Kempner
...of contract. They chose their grounds for relief, and must stand there. They are estopped from setting up different grounds. 96 U.S. 259; 61 Wis. 623; 37 Minn. 465; 9 Utah 105. Morris M. Cohn, for appellees. 1. The contracts were not enforceable because of fraud and misrepresentation. 32 Ga......