Optenberg v. Skelton

• Decision Date: 26 February 1901
• Parties: OPTENBERG v. SKELTON.
• Court: Wisconsin Supreme Court

109 Wis. 241

85 N.W. 356

OPTENBERG

v.SKELTON.

Supreme Court of Wisconsin.

Feb. 26, 1901.

Appeal from circuit court, Sheboygan county; Michael Kirwan, Judge.

Action by John H. Optenberg against Robert Skelton. Judgment for defendant. Plaintiff appeals. Affirmed.

On May 15, 1898, the plaintiff sold to the defendant a second-hand traction threshing engine, at the agreed price of $550, which he warranted to be in good working condition. It was found defective, and the plaintiff, who was a machinist and dealer in such commodities, assured defendant that the defects could be remedied so as to make the engine comply with the warranty. Repeated repairs and alterations were made from time to time under that assertion. The defendant retained the engine, and attempted to use it through the threshing season of 1898, during which he worked with it 27 days. The engine was not in good working order, especially in inability to keep up steam, so that frequent stoppages occurred. Not until after the threshing season, in the following February, did the plaintiff succeed in repairing the defects so as to make the engine meet the warranty. Plaintiff sued for balance of unpaid purchase price, and defendant counterclaimed for special damages resulting from the breach of warranty, the damages claimed in the counterclaim being 15 trips by defendant to Sheboygan in connection with repairs, $44.50; loss of time of defendant and his crew of threshing help during the threshing season for the purpose of making repairs and to let the engine make steam, and “damages otherwise caused by reason of the defects,” $150; expenditure for hire of another engine to complete threshing contracts, $15; and six days' time of defendant in efforts to repair, $9. Defendant tendered judgment for $100, which tender was not accepted. The case was tried to a jury, and a special verdict taken, in which the balance of purchase price due plaintiff was found, without controversy, at $226.66. The jury found, further, that the engine was less valuable by reason of the noncompliance with the warranty in the sum of $250, and, in answer to specific questions, as follows: “(9) During the 27 days of use of the machine, defendant's loss, in wages paid to his men, for time in which the work was stoppedor suspended because the engine did not furnish the required steam, $54; (10) the loss to the defendant on account of the loss of his time during the same period and from the same causes, $13.50; (11) that such stoppage was due to the defective condition of the engine; (12) that the value of defendant's time and team for 13 trips made to get engine repaired was $44.50; (13) that the defective condition made necessary the hire of another engine for five days, at $3 per day, $15; (14) that the value of defendant's time for six days spent in trying to repair the defects in the engine in question was $9; (15, 16, 17) that the diminished earnings during the 27 days in question, by reason of the defects in the engine, were 170 bushels per day, at the price of 2 1/2 cents per bushel.” On motions for judgment, the court rejected the diminished value of the engine as not within the pleadings, and rejected the loss of earnings, in response to fifteenth, sixteenth, and seventeenth questions, as too remote, but awarded defendant recovery upon his counterclaim for the items found by the ninth, tenth, twelfth, thirteenth, and fourteenth questions, aggregating $136; thus reducing plaintiff's net recovery to $90.66, being less than the amount of the tender of judgment, so that by balancing of costs a net judgment of $4.91 was rendered in favor of the defendant, from which the plaintiff appeals.

Andrew Gilbertson and C. H. Maynard, for appellant.

Simon Gillen, for respondent.

DODGE, J. (after stating the facts).

By reason of the fact that the bill of exceptions is not certified to contain all of the evidence, we are unable to consider several of the assignments of error, especially those which assail the answers to certain questions in the special verdict as contrary to the evidence, and that which assigns error for refusing to direct a verdict in plaintiff's favor.

The first, fourth, and eleventh assignments of error are predicated on the admission in evidence and submission to the jury of the question of loss of profits, or, rather, loss of earnings of the engine, during the time it was actually operated, by reason of its defects. These assignments need no consideration; for, even if it be conceded that such damages were speculative and remote, no error prejudicial to the plaintiff would be presented by the record, since the court rejected the allowance made by the jury therefor, and his conduct in admitting evidence thereof, and permitting the jury to find thereon, can have had...