Warder v. Fisher
| Decision Date | 03 February 1880 |
| Citation | 48 Wis. 338,4 N.W. 470 |
| Parties | WARDER AND ANOTHER v. FISHER. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Crawford circuit court.
Thomas & Fuller, for appellants.
Wm. H. Evans, for respondent.
This action was brought by the plaintiffs to recover the value of a reaper which they allege the defendant purchased of them, and for which he agreed to pay the sum of $146. The defendant by his answer denies that he ever purchased the reaper of the plaintiffs, and alleges that it was delivered to him by the plaintiffs on trial, with the agreement that if he was not satisfied with it they would take it away again, and that after trial he notified the plaintiffs that he was not satisfied with it and requested them to take it away. Upon the trial the evidence was very conflicting, the plaintiffs' witnesses testifying that the defendant made an absolute purchase of the machine for the agreed price of $145, with a special warranty on the part of the plaintiffs that the machine should do good work, and if it did not, after notice to plaintiffs and an opportunity given to test the same by the plaintiffs or their agents, then perform the work as warranted the machine was to be returned to the plaintiffs and the defendant released from all liability to pay for the same. The defendant and some of his witnesses testified that he did not purchase the machine, but took it on trial, to be returned if not satisfied with it; that he tried it and it did not satisfy him; that he notified the plaintiffs of the fact and requested them to take it away. There was no evidence showing a breach of the special warranty in case the jury found from the evidence that the defendant purchased it with such warranty.
The evidence being conflicting, upon the principal issues in the case, it was important that the jury should be carefully instructed as to the rights of the parties under the two differenttheories of the case. The learned circuit judge very properly instructed the jury that if they found in favor of the defendant's theory, that he took the machine upon trial, to be taken away by the plaintiffs if he was not satisfied with it, then there was no sale, and the plaintiffs could not recover. He also very properly instructed the jury that if they found in favor of the plaintiff's theory, that there was a sale with a warranty “that the defendant could not rescind the contract unless the machine was defective--if it was not what it was represented to be, he might return, or offer to return it, and relieve himself from obligation.” “If he purchased the machine by contract, and took it with a warranty, he was bonnd to comply with the terms of the warranty before he was entitled to rescind the contract.”
The foregoing instructions were followed by the following: “If it was a contract of sale, and the machine was wholly unfit for the uses for which it was constructed and purchased, there was an entire failure of consideration, and the defendant in that case would not be required to return or offer to return the machine and is not bound to pay for it.” This instruction was excepted to by the plaintiffs, and it is insisted that it does not correctly state the law, and that it tended to mislead the jury to the prejudice of the plaintiffs. We think the learned circuit judge was mistaken in his legal proposition, and that the exception of the plaintiffs was well taken. The court had already charged the jury correctly that, “if the defendant purchased the machine and took it with a warranty, he was bound to comply with the terms of the warranty before he was entitled to rescind the contract.”
This instruction was applicable to the case made by the plaintiffs' evidence, that the sale was accompanied by a special warranty, which provided that such special warranty should be invalid and of no effect,
The case was properly submitted upon the claim of the plaintiffs that the sale was made with this special warranty, by the instructions first given by the learned judge; but the instruction to which exception was taken submitted the case to the jury upon a wholly different theory, to-wit: that if the defendant had in fact purchased the machine, no matter upon what terms or conditions, yet if the jury found from the evidence that it was wholly unfit for the uses for which it was constructed and purchased, then the plaintiff could not recover, even though the defendant had not returned or offered to return it. We think the jury must have so understood the instruction, as the evidence does not show any sale, except the sale with the special warranty. The plaintiffs' evidence tends to prove the sale with such warranty and no other, and the defendant's evidence that there was no sale. The jury must, therefore, have understood that if there had been a purchase by the defendant with a special warranty, yet if the machine proved on the trial to be wholly unfit for the uses for which it was purchased, the special warranty might be disregarded by the defendant, and still he could defeat the plaintiffs' action without returning or offering to return the machine.
It seems to us that the instruction was inconsistent with the one just before given, as above quoted, and did not state the law correctly in stating that “if the machine was wholly unfit for the uses for which it was purchased, there was an entire failure of consideration.” The...
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...constitute substantive evidence against him and are not limited to their effect in impeaching him as a party or witness. Warder v. Fisher, 48 Wis. 338, 4 N. W. 470;30 Yale Law Journal, 355. [8][9] From the adverse examination in this case, we think the jury were entitled to believe, in spit......
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...recover the real value of the chattel, if any, notwithstanding its total unfitness for the use for which it was purchased. Warder v. Fisher, 48 Wis. 338, 4 N. W. 470. In such case the measure of damages would be the difference between the contract price and the actual value, and, if the cas......
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...where evidence of the worthlessness of the articles was admitted though there was no counterclaim or setoff pleaded. Warder v. Fisher, 1879, 48 Wis. 338, 4 N.W. 470; J. I. Case Plow Works v. Niles & Scott Co., 1900, 107 Wis. 9, 82 N.W. 568; J. Thompson Mfg. Co. v. Gunderson, 1900, 106 Wis. ......