Tews v. Marg

• Decision Date: 19 December 1944
• Citation: 16 N.W.2d 795,246 Wis. 245
• Parties: TEWS v. MARG.
• Court: Wisconsin Supreme Court

246 Wis. 245

16 N.W.2d 795

TEWS

v.MARG.

Supreme Court of Wisconsin.

Dec. 19, 1944.

Appeal from a judgment of the Circuit Court for Clark County; Clarence E. Rinehard, Judge.

Reversed.Action commenced January 6, 1943 by Edgar Tews against Kurt Marg for damages because of breach of warranty. Judgment was for plaintiff. Defendant appeals.

Plaintiff, a breeder of mink, in his complaint alleges that on September 20, 1942, defendant, a dealer in feed for mink sold feed to plaintiff; that defendant knew at the time of the sale that the feed was to be used for feeding mink; that defendant represented and warranted the meat to be fit for such purpose; that the purchase was made by plaintiff in reliance upon such warranty and representation. It is further alleged that the feed was not of the quality and condition warranted but contained contaminated material and that as a result of its use by plaintiff in feeding his mink, the mink died; all to his damage. Defendant denies the warranty and all responsibility for any damage.

The case was tried to the court and jury. At the close of the testimony, defendant moved for a directed verdict on the grounds that plaintiff had failed to give notice of the breach of warranty in compliance with sec. 121.49, Stats. This motion was denied by the trial court. Plaintiff had already asked to be allowed to amend his complaint to include a cause of action for fraud and to conform to the proof. This motion had been denied when defendant moved for a directed verdict. The following questions were put to the jury:

‘Question 1: Was the death of the mink of the plaintiff, Edgar Tews, caused by food poisoning resulting from an unfit condition of the horse meat existing when sold to him by the defendant, Kurt Marg?

‘Question 2: If you answer question One ‘Yes', then did the defendant, Kurt Marg, as a part of said sale, expressly represent and warrant the horse meat to be fit for the feeding of mink?

‘Question 3: If you answer question Two ‘Yes', then did the plaintiff, Edgar Tews, in purchasing the horse meat, rely on such express warranty which you so find?

‘Question 4: If you answer question One ‘Yes,’ then did the plaintiff, Edgar Tews, as buyer, rely on the skill or judgment of the defendant, Kurt Marg, as seller, that the horse meat was reasonably fit for the purpose of feeding mink?'

The jury answered each question in the affirmative. Judgment for the plaintiff was entered accordingly.

Donald L. Farr, of Eau Claire, for appellant.

Hugh G. Haight and Haight & Beilfuss, all of Neillsville (Brazeau & Graves, of Wisconsin Rapids, of counsel), for respondent.

FAIRCHILD, Justice.

Respondent did not attempt to prove the giving of a necessary notice to appellant of a claim for damages because of breach of warranty. He concedes on this appeal ‘that by reason of their failure to give any notice, as required by sec. 121.49, Stats. they are not entitled to recover on the ground of breach of warranty.’

Appellant was very evidently relying on the failure to give the notice as a substantial reason for defeating the cause of action alleged. The question now arises as to whether anything occurred to warrant assuming a change in the cause of action and a requirement of appellant to explain or defend against such other cause of action. Was his failure to do so such as to subject him to the judgment entered? Respondent thinks that recovery in his favor may be had in this case on the ground of fraud, that ‘the court in rendering judgment for the plaintiff (respondent) treated the complaint as amended to conform to these proofs.’ But the pleadings were not changed so as to introduce or make a part of the complaint, any allegation of fraud or negligence. When the request was made by respondent to shift his case from one on contract to one in tort, appellant made his position plain. His attorney said: ‘If that motion were made even at the commencement of this trial I am sure this court would have granted a motion for continuance. The defendant should have a right to prepare his case on that ground.’ There was some further discussion and the court said: ‘You gentlemen have made your record on this matter. I'm going to deny the motion * * *.’ Then followed the motion by appellant for a directed verdict in defendant's favor. And the court ruled as follows: ‘As to that, the jury is here and we have tried the case. The same question can be raised after the verdict is in. I think we'd better present the matter to the jury. Your motion for a directed verdict is denied.’ The course adopted resulted in respondent not being permitted to amend his complaint and also in a denial of a continuance affording an opportunity to appellant to answer the charge upon...