Trapp v. New Birdsall Co.

• Decision Date: 03 May 1898
• Citation: 75 N.W. 77,99 Wis. 458
• Parties: TRAPP v. NEW BIRDSALL CO.
• Court: Wisconsin Supreme Court

99 Wis. 458

75 N.W. 77

TRAPP

v.NEW BIRDSALL CO.

Supreme Court of Wisconsin.

May 3, 1898.

Appeal from circuit court, Columbia county; R. G. Siebecker, Judge.

Action by Casper Trapp against the New Birdsall Company. From a judgment for plaintiff, defendant appeals. Reversed.

Action for breach of warranty in the sale of a threshing-machine engine. On the 29th day of January, 1895, the defendant, through its duly-authorized agent, sold to the plaintiff a threshing-machine engine for $1,200, payable $400 in an old engine, and $800 January 1, 1896, with the following warranty in writing: “This machine is hereby ordered, purchased and sold, subject to the following warranty: That the machine is well built, of good materials, and with proper management is capable of doing as much and as well as other machines of like size and proportions.” The contract of sale contained the following stipulations: “The purchaser agrees, if the machine should not work well, to give written notice to the Birdsall Co., at Auburn, N. Y., stating wherein it fails, and also give like notice to the agent from whom it was received. It is agreed that notice shall be given both to the company and the agent, and notice to either alone shall not be sufficient. Reasonable time is to be allowed to get to it and remedy the defects, if any exist. * * * If it cannot be made to perform as guarantied, it shall be returned to place where received and a new machine given in its place, or the notes and money refunded. * * * If the purchaser does not make full settlement in cash or approved notes for the machine upon its delivery to him, he thereby waives all claims under this warranty and the whole of the purchase money becomes due and demandable.” The written contract was set forth in full in the complaint, with allegations in addition in regard to representations as to the capacity of the engine, made at the time of the making of the written contract, but not included therein. The complaint alleged that the engine failed to fulfill the guaranty in that it was poorly constructed, not of good material, and that it was not capable of doing work it was warranted to perform. Performance of all the conditions precedent to plaintiff's right of action on the warranty were duly pleaded. The answer denied all the allegations of the complaint in regard to the alleged breach of warranty, and the performance of the conditions precedent to plaintiff's right to rely on it. At the close of the evidence, defendant's counsel moved the court to direct a verdict in defendant's favor upon the ground that there was no evidence to sustain the allegations of the complaint as to the breach of warranty, and that the warranty was waived. The motion was denied and due exception taken to the ruling. The cause was then submitted to the jury for a special verdict, which resulted in findings, so far as they relate to the questions presented on this appeal, in substance as follows:

(1) The engine was not well built, was not built of good material, and, with proper management, was not capable of doing as much and as well as other machines of like size and proportions.

(2) The machine was delivered June 3, 1895, and settled for July 1st, thereafter.

(3) We assess plaintiff's damages at $1,281.

Defendant's counsel moved the court for judgment in defendant's favor notwithstanding the verdict, and also moved the court to set the verdict aside and for a new trial, among other things, because the verdict was contrary to the evidence, both of which motions were denied, and the rulings duly excepted to. Judgment was rendered in plaintiff's favor upon the verdict, from which defendant appealed.Maurice McKenna, for appellant.

J. J. Sutton and W. G. Coles, for respondent.

MARSHALL, J. (after stating the facts).

The first question requiring consideration is, was the special warranty, relied on by respondent, forfeited by a failure to settle for the engine at the time of its...