Waupaca Elec. Light & Ry. Co. v. Milwaukee Elec. Ry. & Light Co.

• Citation: 88 N.W. 308,112 Wis. 469
• Court: United States State Supreme Court of Wisconsin
• Decision Date: 17 December 1901
• Parties: WAUPACA ELECTRIC LIGHT & RY. CO. v. MILWAUKEE ELECTRIC RY. & LIGHT CO.

112 Wis. 469

88 N.W. 308

WAUPACA ELECTRIC LIGHT & RY. CO.

v.MILWAUKEE ELECTRIC RY. & LIGHT CO.

Supreme Court of Wisconsin.

Dec. 17, 1901.

Appeal from circuit court, Milwaukee county; Lawrence W. Halsey, Judge.

Action by Waupaca Electric Light & Railway Company against the Milwaukee Electric Railway & Light Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Action for damages for breach of warranty of an electric generator. The complaint was to the effect that plaintiff, being in need of a generator for use in operating an electric street railroad, made known that fact to the defendant, whereupon the latter represented to the former that it had a machine for sale which was in first class operative condition and in every way suited to the former's needs; that, relying upon such representations plaintiff purchased said machine; that it was not as represented, but was defective in that the insulation of the wires was nearly burned out and that it was entirely unsuitable for the use for which it was purchased; that plaintiff paid $1,250 for the generator, but that it was not worth, by reason of the faults therein as alleged, to exceed $425; that, relying upon the warranty aforesaid plaintiff transported the generator to its power house, installed it for use and endeavored to operate it, exercising reasonable care in that regard; that it proved to be so worn out and exhausted that the insulation or some part of it burned out repeatedly under ordinary use, and that it finally gave out so as not to be worth repairing; that plaintiff suffered damages in the whole, by reason of the breach of warranty, the amount of $3,075.12. Defendant answered, denying that the machine was sold with a warranty of quality or fitness, or that it was defective or out of condition when sold, and alleging that it was in good operative condition when delivered to plaintiff, and that the difficulties experienced in operating it were caused either by negligence or accident and not by any defect in the machine. The jury rendered a verdict in favor of the defendant.C. H. Hamilton, for appellant.

Miller, Noyes & Miller, for respondent.

MARSHALL, J. (after stating the facts).

Many errors are assigned on rulings of the trial court admitting and rejecting evidence, which we do not deem necessary to discuss in this opinion. All questions presented for consideration have been reviewed, and each that involves error, whether prejudicial or not, will receive attention here.

A witness was permitted to testify that it is not prudent management to run a street railway or lighting plant with a secondhand generator, and that there are difficulties, in operating a new electric line, especially trying on a generator. We are unable to perceive what bearing that had on the issues made by the pleadings. It did not tend to rebut evidence that the machine was sold with warranty of quality and fitness or that it was not, when sold, in good operative condition as represented. At best it gave the jury room to speculate that possibly the difficulties experienced in trying to operate the generator were attributable to bad management. The evidence should not have been received.

One of the material controverted questions was whether the person who represented respondent in selling the generator had authority to bind the corporation by a warranty. On the part of appellant evidence was given to the effect that it is customary in selling secondhand electrical machinery to sell the same with warranty. The court instructed the jury that: “Any buyer who takes a warranty going beyond the reasonable scope of the selling agent's authority does it at the risk of being able to prove that the agent had his principal's express authority to that extent, but if he fails to prove it, the law will not infer such authority.” That was an erroneous statement of the law as applied to the evidence in this case and was so clearly prejudicial to appellant that a reversal of the judgment cannot be avoided. This court held, in effect, in Boothby v. Scales, 27 Wis. 626, that nothing short of express authority to an agent, to warrant the quality of property of his principal, offered by him for sale, will bind such principal. That was overruled, however, in Pickert v. Marston, 68 Wis. 465, 32 N. W. 550, 60 Am. Rep. 876, which has been since followed. Larson v. Aultman & Taylor Co., 86 Wis. 281, 56 N. W. 915, 39 Am. St. Rep. 893;Roche v. Pennington, 90 Wis. 107, 62 N. W. 946;Westurn v. Page, 94 Wis. 251, 68 N. W. 1003. In those cases, the doctrine laid down by the trial court here is stated to be the general rule, subject, however, to an exception, which applies to the evidence in this case, that if, in the sale of a particular class of property, it is customary to accompany the sale with a warranty as a means of effecting it, then, as a matter of law, an agent to sell such property possesses implied authority to do so.

The court instructed the jury, in effect, that if the generator was sold with warranty and there was a breach thereof, but appellant failed, within a reasonable time after discovering the defects,...