Warder, Bushnell & Glessner Co. v. Whitish
| Decision Date | 23 September 1890 |
| Citation | 77 Wis. 430,46 N.W. 540 |
| Court | Wisconsin Supreme Court |
| Parties | WARDER, BUSHNELL & GLESSNER CO. v. WHITISH. |
OPINION TEXT STARTS HERE
Appeal from circuit court, Grant county.
This is an action to recover $135 and interest, the alleged purchase price of a certain Champion Light Binder manufactured by the plaintiff, and delivered to the defendant under an alleged written contract, with a warranty annexed. The answer denied the execution of any such contract, and alleged in effect that the agent of the plaintiff applied to the defendant to sell him such a machine, and upon the defendant's informing him that he had seen the plaintiff's machine, and did not like it nor the manner in which it worked, that said agent represented to the defendant that said binder had been much improved during the year previous; that it was much lighter, and made of steel; that two horses could easily work it, and it was not hard upon their necks; that it could be raised and lowered both at the bull-wheel and at the grain-wheel, and was so arranged that bundles could be bound large or small at pleasure, depending upon whether there were weeds or other green stuff in the grain; that said binders were as good as any other binder; that if the defendant would buy one, he might take it and try it until he was satisfied, and that if it was not as they had represented, and he was not suited with it, he could return it at any time, and need not pay for it; that the defendant was induced by such representations to take one of the plaintiff's machines upon such terms; that thereupon said agent produced and asked the defendant to sign a paper which he then represented to the defendant as nothing more than an order for a machine, upon the terms and conditions stated; that said agent did not read said paper to him; that the defendant is and was an illiterate person, incapable of reading or writing; that, relying upon such representations, he signed the paper, and received from the plaintiff a machine, July 19, 1888; that, upon trial under the supervision of plaintiff's agent, July 27, 1888, it was found not to be such a machine as represented by him, nor made of the materials represented, and that it would not operate as had been represented by him; that the defendant thereupon notified the agent of the plaintiff that he did not like the machine, and would not keep it; that said agent thereupon again tried said machine without being able to make it work as represented; that the defendant thereupon informed said agent that the machine was not such as he had ordered, and did not do good work; and that he would not keep it, and returned it. The answer further alleges that the machine was not as represented in the plaintiff's printed warranty, and did not comply with the terms thereof. At the close of the trial the jury returned a verdict in favor of the defendant, and, from the judgment entered thereon, the plaintiff brings this appeal.Clark & Taylor, for appellant.
Orr & Lowry and W. E. Carter, for respondent.
The finding of the jury in favor of the defendant is to the effect that he was induced to sign the written contract by the false representations of the plaintiff's agent, and that the real contract of purchase was, in effect, as alleged in the defendant's answer. There is evidence sufficient to support the verdict. It remains to be considered whether there were any errors upon the trial.
1. Error is assigned...
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...that such person is not inexcusably negligent. The following are samples of the authorities referred to: Warder, Bushnell & Glessner Co. v. Whitish, 77 Wis. 433, 434, 46 N. W. 540, where the rule in Mamlock v. Fairbanks was inferentially affirmed. The injured person, by false representation......
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