Palmer v. Banfield

• Citation: 86 Wis. 441,56 N.W. 1090
• Parties: PALMER v. BANFIELD.
• Decision Date: 28 November 1893
• Court: United States State Supreme Court of Wisconsin

86 Wis. 441

56 N.W. 1090

PALMER

v.BANFIELD.

Supreme Court of Wisconsin.

Nov. 28, 1893.

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

Action by John Palmer, Jr., against Thomas Banfield. From a judgment for plaintiff, defendant appeals. Affirmed.

The other facts fully appear in the following statement by LYON, C. J.:

This action is to recover the price of a reaper and harvester alleged to have been sold and delivered by plaintiff to defendant in August, 1892, for the agreed price of $110. The complaint states the contract to have been that defendant should on demand give plaintiff for the price of the machine his two promissory notes for $55 each,--one payable in one year, and the other in two years, from the date of sale, with interest. It is further alleged in the complaint that defendant took, used, and accepted the machine, and that on due demand by plaintiff, made before the action was commenced, that defendant execute such notes, the latter refused to do so. In his answer defendant denies that the parties made the agreement alleged in the complaint, and avers that the only agreement made in respect to the machine (which is referred to in the answer as a harvester and binder) was as follows: “The defendant was to take and did take said binder to try and use in his harvesting for the years 1892 and 1893, and that, if said harvester and binder did the work satisfactorily to this defendant during said two harvests, then, in that event, said defendant was to pay said plaintiff the sum of $55 after the harvest of 1893, and the further sum of $55 in the fall of 1894, and not otherwise.” The answer further alleges that on a fair trial of the machine it failed to work satisfactorily to defendant, and failed to do good work, whereupon he immediately returned it to plaintiff. The answer also contains a counterclaim for $25 damages for “trouble and expense by reason of said harvester and binder failing to work satisfactorily to the defendant.” The cause was tried before the court and jury. The testimony of plaintiff tends to prove the allegations of the complaint, and that of defendant tends to prove the allegations of the answer. It appears by the testimony that the machine was delivered to defendant on a certain Thursday afternoon, and was immediately put to work, and developed some defects in its construction. That defendant used it through Friday, and discovered other defects going to the capacity of the machine and the principle upon which it was constructed. The testimony tends strongly to show, if it does not prove conclusively, that as early as Friday defendant had discovered all the defects in the machine, was dissatisfied with it, and had decided to return it. However, he used the machine nearly all day on Saturday, and until he had finished cutting his grain, and then sent it to Cuba City, 1 1/2 miles distant, where plaintiff had a place of business, and it was left on a vacant lot formerly occupied by plaintiff. The plaintiff never accepted return of the machine, and has had nothing to do with it since such attempt to return it.

The court refused to give the following instructions proposed on behalf of defendant: “(1) When machinery is guarantied to do certain work in a satisfactory manner, and not to be paid for until satisfactory to the purchaser, if it is in good faith unsatisfactory to him, and he notifies the vendor of that fact within a reasonable time, there is no sale. (2) If you find that the contract was that the binder was to do work to the satisfaction of the defendant, and that the defendant made an honest effort to make said binder do goood work, and if the defendant within a reasonable time returned the binder to plaintiff because he was in good faith dissatisfied with the binder, then your verdict shall be in favor of the defendant. (3) If the jury find in favor of the defendant, they may also find such damages, if any, that he may have suffered by reason of the failure of the binder to do the work agreed that it would do by the contract.” The court submitted it to the jury to find what the contract of the parties was, and instructed the jury substantially that, if they found it to be as alleged by the plaintiff, there was an implied warranty that the machine was suitable for the work it was intended to do; and, if not suitable therefor, defendant had the right to return it to plaintiff within reasonable time after discovering its defects. But the court further instructed the jury, if they found that defendant, after “he knew or ought to have known from the test he made that this machine was an unsatisfactory machine on Thursday or Friday, and, after determining that he was not satisfied with it, nevertheless went on and worked with it on Saturday, for the purpose of completing his harvest, the law would consider that an acceptance of the machine.” Also that such acceptance would foreclose defendant's right to return it, and render him liable to pay therefor the agreed price. The court further instructed the jury that, if they found defendant's version of the contract the correct one, he had the right to return the machine if not satisfied with it, unless he had theretofore accepted it under the rule of acceptance above stated; and, if he did thus accept it, the right to return it was lost. The jury found for plaintiff, and assessed his damages at $110 (that being the admitted...