Neave v. Arntz

• Decision Date: 21 November 1882
• Citation: 56 Wis. 174,14 N.W. 41
• Parties: NEAVE v. ARNTZ.
• Court: Wisconsin Supreme Court

56 Wis. 174

14 N.W. 41

NEAVE

v.ARNTZ.

Supreme Court of Wisconsin.

Filed November 21, 1882.

Appeal from circuit court, Juneau county.

This action was brought in justice court for the breach of an alleged warranty on the sale of a reaper. On the trial the justice rendered judgment for the defendant, from which the plaintiff appealed to the circuit court, but filed no affidavit that his claim exceeded $15 in amount. Defendant testified, among other things, as stated by his counsel: “I said [to Neave] I had a second-hand machine, known as the Nell Davis reaper; that it had only cut three harvests; that Davis paid $160 for it, and I thought it was a pretty good second-hand machine. I told Neave to look it all over; that it was just as good a cutting machine as there was in the country; to notice that I had put on a new sickle, pitman, pitman-wheel, and pinion, but that I had sent to Chicago for a cap to hold the sickle-head in place; that it could not run till that was put on; that I thought that was all that was needed; that if he should need any more extras during harvest I would furnish them free. I said, ‘Can you set it up yourself?’ He said he could; that he had been threshing for the last 20 years, and he could make it work if anybody could. * * * This was Saturday. As to the talk and occurrence in the field on Wednesday after the sale, Arntz testified Neave said the machine run hard; that he didn't like it. I told him that any machine would run hard in that sand--the drive-wheel would cut down four inches into the sand. I told them in the presence of Sandford that this machine would do just as good cutting as any machine made, and that I would warrant it to do as good cutting. I never said in the field that I had warranted the machine to Neave, as I had never done so. I did say that I had warranted it to do as good cutting, and that it would do just as good work as my father's machine; that is, good cutting and delivering the bundles. I did tell Sandford that all of Osborne's goods were warranted, and that they furnished a written waranty with all new machines. I never told Sandford that I warranted the machine to Neave, and the fact is that I never in any respect warranted this machine to Mr. Neave.” The circuit court found that the fact of a warranty was established by a clear and even a preponderance of testimony, and that the plaintiff was entitled to recover some damages at least, and thereupon ordered and adjudged that the judgment of the justice court be reversed, and that the plaintiff have judgment against the defendant for costs of the action, and judgment was accordingly entered, from which the defendant brings this appeal.

A. W. Perry, for respondent, James Neave.

Winsor & Veeder, for appellant, William Arntz.

CASSODAY, J.

No affidavit having been made that the plaintiff's claim exceeded the sum of $15, as required by section 3768, Rev. St., the appeal was necessarily heard on the...