Parry Mfg. Co. v. Tobin

• Decision Date: 20 March 1900
• Citation: 82 N.W. 154,106 Wis. 286
• Parties: PARRY MFG. CO. v. TOBIN.
• Court: Wisconsin Supreme Court

106 Wis. 286

82 N.W. 154

PARRY MFG. CO.

v.TOBIN.

Supreme Court of Wisconsin.

March 20, 1900.

Error to circuit court, St. Croix county; E. W. Helms, Judge.

Action by the Parry Manufacturing Company against Andrew Tobin. From a judgment for defendant, plaintiff brings error. Reversed.James A. Frear, for plaintiff in error.

Smith & Oakes, for defendant in error.

CASSODAY, C. J.

This action was commenced in a justice's court to recover $82 and interest as the balance due to the plaintiff company from the defendant, Tobin, for 44 vehicles ordered by him from the company in 1897, and shipped by the company from Indianapolis to the defendant at New Richmond. The company recovered judgment before the justice, and Tobin appealed to the circuit court. Thereupon Tobin amended his answer by way of denials, admissions, and counter allegations, claiming damages by way of recoupment, and counterclaim for breach of the printed warranty contained in the company's catalogue, and incorporated into the order, and which reads as follows: “Guaranty on Four Wheelers as Private Vehicles Only. With fair and reasonable usage, wheel, spring, and axle are warranted for one year. If defective on account of material or workmanship, we will replace or repair the same free of charge, on return of defective part to us. Should we find, on examination, that the parts so returned were not defective in material or workmanship, we will charge for repairing the same, including all expenses to us, attached to the return of the broken parts. We will not allow deductions for any cash you may pay out. Damage to paint or varnish on account of ammonia or exposure to the elements,loose and worn-out tires, or a broken spring that does not show a flaw in the steel, cannot be considered as coming under this guaranty. The above guaranty on wheels does not apply unless tire is kept tight, and wheel properly dished. Remember that by shipping goods under a general release clause we obtain freight rates very much lower than otherwise, for the sole benefit of our customers. Bear this in mind, and do not hold us responsible for loss or damage caused by transportation companies. We deliver the work in good condition to the transportation companies, taking their receipts for the same. Our responsibility thereafter ceases. You must make your claims for damage against the transportation company. Wheels, axles, and springs,--if they prove defective on account of poor work or material,--we will give you two to replace the one broken.” And also for the breach of the warranty written in the order as follows: “Paint guarantied not to peel or flake.” The company replied, and put in issue the allegations of the counterclaim. At the close of the trial the jury returned a verdict, wherein they found for the defendant, Tobin, and assessed his damages at $11.90. To reverse the judgment entered thereon for that amount of damages and $65.47 costs and disbursements, the company sued out this writ of error.

As indicated in the statement, the order contained a written guaranty that the “paint” would not “peal or flake,” and the only other warranty was contained in the catalogue, and that only extended to “wheels, springs, and axles” of “private vehicles,” and as to them only “for one year,” with certain limitations as to the extent of such warranties. Counsel for the company contends that the defendant was not entitled to recover damages for the breach of any of such warranties, without first returning or offering to return the defective parts for replacement or repair,--which was never done. Accordingly, error is assigned, because the court refused to instruct the jury to the effect that, before the defendant could recover for any such breach, he was obliged to notify the plaintiff of any failure of warranty or defects of workmanship or material; that, unless the plaintiff had knowledge of such defects, and refused to repair or remedy the same, the plaintiff was entitled to recover the full amount of the purchase price. In support of such contention counsel cite and rely upon Kingman v. Watson, 97 Wis. 596, 73 N. W. 438, and Nichols & Shephard Co. v. Chase, 103 Wis. 570, 79 N. W. 772. These cases are clearly distinguishable. The contract in the last of these cases was in no respect like the one in the case at bar. Nor does the contract in the case at bar bring the case within the ruling of the first of the cases cited. True, the plaintiff in this case agreed to replace or repair defective parts on account of material or workmanship, but there is no stipulation that the defendant should return or offer to return such...