Smeesters v. Schroeders
| Decision Date | 15 November 1904 |
| Citation | 101 N.W. 363,123 Wis. 116 |
| Parties | SMEESTERS v. SCHROEDERS. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Brown County; Saml. D. Hastings, Judge.
Action by Joseph Smeesters against Frank F. Schroeders. From a judgment for defendant, plaintiff appeals. Affirmed.
Action to recover damages for difference in value of a warranted horse received in trade for a horse of the plaintiff's; the plaintiff claiming, also, $25 special damages for expenses in transporting and caring for such horse. The jury, by special verdict, found a warranty and a breach thereof, and $65 as the difference in value between the horse in fact and as warranted. It appeared without dispute that upon discovering the breach of warranty the plaintiff, on July 9, 1902, went to defendant and demanded rescission and return of the horse given by plaintiff, saying that defendant's horse would arrive for surrender the following day; that demand was refused. Thereupon, on same day, plaintiff made affidavit before a justice of the peace, and obtained a warrant of replevin for the horse given by him, which warrant he delivered to the sheriff, who, however, was unable to find and take the property, and therefore made no service of the warrant, which never was returned; the proceedings being dismissed on the justice's docket two or three days later, and all before the commencement of this action. On July 10th plaintiff again demanded return of his horse; notified defendant that the other was in town and ready for delivery, and would be left at a certain livery stable subject to his order. The defendant again refused rescission, and informed plaintiff that the horse he had traded had been sold to a third person. Whereupon plaintiff left the horse he had received at a livery stable, with orders to deliver to defendant, and has had no contact with it since. The court ruled that these steps taken by the plaintiff constituted an election of remedies with which the present action was inconsistent, and therefore ordered judgment dismissing the complaint, after having first overruled a motion for a new trial, from which judgment plaintiff appeals.Sheridan & Evans, for appellant.
McGillan & Fontaine, for respondent.
DODGE, J. (after stating the facts).
The plaintiff, having been induced to trade horses by misrepresentation or false warranty as to the quality of the horse he was receiving, under familiar rules, had right of election either to stand upon the contract which the defendant had induced, and to recover the damages resulting to him by reason of the defective quality of the horse which he had received, or to rescind the contract, and, upon returning what he had received, to recover back that with which he had parted, or its value if not recoverable in specie. Fairfield v. Madison Mfg. Co., 38 Wis. 346;Park v. Richardson Co., 81 Wis. 399, 51 N. W. 572. It is, of course, apparent, as stated in the cases above cited, that the remedies above described are wholly inconsistent. Either there is a contract, for breach of which plaintiff is entitled to recover damages, or the contract is set aside and goes out of existence, whereby he becomes entitled to a return of that with which he parted on the faith of...
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