Park v. Richardson & Boynton Co.
| Decision Date | 23 February 1892 |
| Parties | PARK ET AL. v. RICHARDSON & BOYNTON CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Oneida county; J. K. PARISH, Judge.
Action by B. B. Park and others against Richardson & Boynton Company. Judgment for plaintiffs. Defendant appeals. Reversed.
The other facts fully appear in the following statement by WINSLOW, J.:
Action to recover damages for alleged defects and insufficiencies in a furnace sold by appellant to respondents in the fall of 1885, and put into respondents' store-building in Merrill, with necessary pipes and registers. The appellant's proposal, which was accepted by respondents and forms the contract of sale, contained the following clause: “Should this proposal be accepted, and the terms of payment be fully complied with, we will guaranty the said furnace to work satisfactorily, if properly used; otherwise, we will substitute a size that will do the work, or we will remove said furnace and refund the amount paid for same, as may be agreed.” The purchase price of the furnace was $242.50, which was fully paid on or about April 1, 1886. Numerous defects in construction and material were set forth in the complaint, by which it was alleged that the furnace was worthless; that the building had been damaged by smoke, and large expenses incurred for repairs; and the damages were laid at $400. The answer, admitting the sale of the furnace, alleges that the plaintiffs failed to erect a proper chimney, and for that reason the furnace smoked, and that the plaintiffs broke and injured it by careless and improper use. Upon the trial it appeared that the furnace was used for four winters to heat the building, beginning in the fall of 1885; that complaints were made of its smoking early in 1886; that a crack appeared in the top in 1887, and that in July or August, 1887, the plaintiffs asked the defendant to take it out and put in a new furnace, which defendant refused to do, claiming that the crack was caused by improper usage; that afterwards plaintiffs repaired the furnace from time to time, and continued to use it till the summer of 1889, when they made another demand that a new furnace be put in, and afterwards commenced this action. Much conflicting evidence was given as to the working of the furnace and the causes of the alleged defects and insufficiencies, which is not necessary to be stated. The jury found a verdict for plaintiffs for $242.50, with interest from March 30, 1886, and from judgment thereon defendant appeals.Bardeen, Mylrea & Marchetti, for appellant.
Bump & Hetzel and Alban & Barnes for respondents.
WINSLOW, J., ( after stating the facts.)
Under the contract of sale of the furnace, the plaintiffs undoubtedly had two remedies in case the furnace proved substantially defective, either of which they might pursue: First. They might, within a reasonable time after they had discovered the defect, notify the defendant that it was unsatisfactory, and demand its removal, in which event it would become the defendant's duty, under its contract, either to furnish a new furnace, or...
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Nunn v. Brillhart
...waived by the purchaser, and he may keep the article and bring an action for damages for breach of the guaranty. Park v. Richardson & Boynton Co., 81 Wis. 399, 51 N. W. 572; Seigworth v. Leffel, 76 Pa. 476, 479, 480; Williams v. Thrall, 101 Wis. 337, 76 N. W. 599; Rochevot v. Wolf, 96 App. ......
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Leitermann v. Barnard
...question of law, while in cases like the instant case the scope of the acceptance would ordinarily be a question of fact. Park v. Richardson, 81 Wis. 399, 51 N. W. 572. Notwithstanding the form of agreement here, the defendant was at liberty to make such qualified acceptance, and afterward ......
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Coyle v. Baum
... ... rescission should have been submitted to the jury ... ... Park v. Richardson & Boynton Co., 81 Wis. 399, 51 ... N.W. 572, is a case relied upon by plaintiffs in ... ...