[313]*313The following opinion was filed January 12, 1926:
Rosenberry, J.
The principal contentions of the plaintiff are grouped under four heads. It is contended that the defendant cannot recover (1st) because he accepted the tractor by using the same twenty-two and one-half days and by his use of the tractor for a period of about two weeks after he wrote the plaintiff company stating that he condemned the tractor and that he would not keep it; (2d) because he failed to give notice of the breach of warranty as required by the contract; (3d) because he failed to give the second notice required by the contract after plaintiff’s mechanical expert Reed had visited the machine; (4th) because the evidence fails to show a breach of warranty; (5th) because the defendant’s claim for damages is inconsistent with his right to rescind; and it is further claimed that the court erred in admitting testimony regarding the acts and declarations of one Dyer, there being no proof that he was the agent of the company.
The case was thoroughly and exhaustively argued here both in briefs and on oral argument. We shall not attempt to discuss all of the questions raised, but only the principal questions which seem to us decisive of the issues.
The most serious question is that raised by the claim of the plaintiff that the defendant has waived his right to rescind the contract of sale because of his continued use of the tractor with knowledge of the defects, and that there was such user of the tractor as amounted in law to an acceptance. There is considerable evidence in the case that the tractor in question for some reason never operated properly. Plaintiff’s representative Allen was on the ground to start the machine on August 17th. Allen remained upon the ground three or four days. The defendant requested him to remain longer as the tractor was not working properly. Allen assured him that it was new, that it could not under the circumstances be expected to work with entire satisfaction. [314]*314but that it would come out all right. The defendant on his own account procured Ed Rosenow, who had some training and experience. He was unable to adjust it. The contract of warranty provided that the purchaser should not be entitled “to rescind this contract unless—
“(A) Notice of the defect or breach, particularly describing the same and specifying the time of discovery thereof, is given by registered letter addressed to the vendor at its head office,- posted within four days after such discovery.
“(B) Such defect or breach appears within ten days after the first use of the goods.
“(C) The vendor fails to remedy such defect or breach by substitution of parts or otherwise within a reasonable time after receipt of such notice, which substitution it shall have the right to make. . . .
“(9) Purchaser shall render necessary and friendly assistance to vendor in and about remedying the. defect.
“(10) If. vendor fails to remedy the defect, purchaser shall have the right immediately to return the defective goods or parts in as good condition as when received to the place from which they were received, and shall thereupon give vendor immediate notice (written) of such return by a registered letter addressed and mailed to vendor at its head office. . . .
“(12) Failure so to return the defective goods or to give the aforesaid notices shall be taken as conclusive evidence that the warranty is satisfied. . . .
“(15) And if a mechanical expert visits the machine and does not have it working properly, purchaser shall give immediate notice in writing or by prepaid telegram to vendor at its head office, stating specifically the failure or neglect complained of.”
The defendant quite rightly argues that he was in no position, under the terms of the warranty, to rescind the contract until he had given the plaintiff further opportunity to remedy the defects. While the notices were not given in technical compliance with the terms of the warranty, they were acted upon by the plaintiff; the plaintiff never at any [315]*315time prior to the trial claimed that it was misled thereby or that the notices given did not comply with the contract. After the expert Dyer came upon the premises the tractor was used to thresh two small jobs and was not thereafter operated because it could not be made to work. The plaintiff relies upon sec. 121.48, Stats.,-Uniform Sales Act:
“The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or.when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.”
Plaintiff contends that the use of the machine for twenty-two and one-half days and to complete the two jobs brings it within the rule of Fox v. Wilkinson, 133 Wis. 337, 113 N. W. 669. It was there held:
“When a purchaser, has the right to subject the article to trial, the mere use is, of course, ambiguous, for it may be for the purposes of trial; but when the test is complete so that the purchaser has to his satisfaction ascertained all that trial can teach him and determined that the article does not satisfy the contract, then that element of ambiguity is eliminated in the construction of any subsequent acts of dominion or use. After that, certainly any unnecessary application of the article to his advantage and benefit would in honesty be consistent only with a decision to become or continue owner.”
But it was also said:
“Doubtless there may be situations where some use of an article after unsatisfactoriness is fully established is unavoidable to protect the purchaser from injury or serious inconvenience resulting from the very predicament in which he is thrown by making the trial, as, for example, one who discovers defects in the trial drive of a horse and wdio merely continues the use to return to the starting point. In such case the continued use might well fail to evince any intent to retain the article.”
[316]*316This rule has been applied in the following cases among others: Buck v. Racine Boat Co. 180 Wis. 245, 192 N. W. 998; J. L. Owens Co. v. Whitcomb, 165 Wis. 92, 160 N. W. 161; J. B. Bradford Piano Co. v. Baal, 166 Wis. 134, 164 N. W. 822.
The use made by the defendant of the tractor after his right of rescission was complete under the terms of his contract was to dispose of two small threshing jobs mainly for the benefit and convenience of his customers. It is apparent from the evidence that to have passed by these jobs and returned with another outfit would have entailed considerable expense, and under the circumstances the use of the tractor was from a practical standpoint necessary. The finding of the jury that the defendant did not, under all the circumstances, accept the tractor and waive the right of rescission, is amply sustained by the evidence. We are very much impressed, upon consideration of the whole record, with the fact that the defendant acted in the utmost good faith and that he was not looking for a pretext to avoid the terms of the contract and secure the use of a machine for nothing.
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[313]*313The following opinion was filed January 12, 1926:
Rosenberry, J.
The principal contentions of the plaintiff are grouped under four heads. It is contended that the defendant cannot recover (1st) because he accepted the tractor by using the same twenty-two and one-half days and by his use of the tractor for a period of about two weeks after he wrote the plaintiff company stating that he condemned the tractor and that he would not keep it; (2d) because he failed to give notice of the breach of warranty as required by the contract; (3d) because he failed to give the second notice required by the contract after plaintiff’s mechanical expert Reed had visited the machine; (4th) because the evidence fails to show a breach of warranty; (5th) because the defendant’s claim for damages is inconsistent with his right to rescind; and it is further claimed that the court erred in admitting testimony regarding the acts and declarations of one Dyer, there being no proof that he was the agent of the company.
The case was thoroughly and exhaustively argued here both in briefs and on oral argument. We shall not attempt to discuss all of the questions raised, but only the principal questions which seem to us decisive of the issues.
The most serious question is that raised by the claim of the plaintiff that the defendant has waived his right to rescind the contract of sale because of his continued use of the tractor with knowledge of the defects, and that there was such user of the tractor as amounted in law to an acceptance. There is considerable evidence in the case that the tractor in question for some reason never operated properly. Plaintiff’s representative Allen was on the ground to start the machine on August 17th. Allen remained upon the ground three or four days. The defendant requested him to remain longer as the tractor was not working properly. Allen assured him that it was new, that it could not under the circumstances be expected to work with entire satisfaction. [314]*314but that it would come out all right. The defendant on his own account procured Ed Rosenow, who had some training and experience. He was unable to adjust it. The contract of warranty provided that the purchaser should not be entitled “to rescind this contract unless—
“(A) Notice of the defect or breach, particularly describing the same and specifying the time of discovery thereof, is given by registered letter addressed to the vendor at its head office,- posted within four days after such discovery.
“(B) Such defect or breach appears within ten days after the first use of the goods.
“(C) The vendor fails to remedy such defect or breach by substitution of parts or otherwise within a reasonable time after receipt of such notice, which substitution it shall have the right to make. . . .
“(9) Purchaser shall render necessary and friendly assistance to vendor in and about remedying the. defect.
“(10) If. vendor fails to remedy the defect, purchaser shall have the right immediately to return the defective goods or parts in as good condition as when received to the place from which they were received, and shall thereupon give vendor immediate notice (written) of such return by a registered letter addressed and mailed to vendor at its head office. . . .
“(12) Failure so to return the defective goods or to give the aforesaid notices shall be taken as conclusive evidence that the warranty is satisfied. . . .
“(15) And if a mechanical expert visits the machine and does not have it working properly, purchaser shall give immediate notice in writing or by prepaid telegram to vendor at its head office, stating specifically the failure or neglect complained of.”
The defendant quite rightly argues that he was in no position, under the terms of the warranty, to rescind the contract until he had given the plaintiff further opportunity to remedy the defects. While the notices were not given in technical compliance with the terms of the warranty, they were acted upon by the plaintiff; the plaintiff never at any [315]*315time prior to the trial claimed that it was misled thereby or that the notices given did not comply with the contract. After the expert Dyer came upon the premises the tractor was used to thresh two small jobs and was not thereafter operated because it could not be made to work. The plaintiff relies upon sec. 121.48, Stats.,-Uniform Sales Act:
“The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or.when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.”
Plaintiff contends that the use of the machine for twenty-two and one-half days and to complete the two jobs brings it within the rule of Fox v. Wilkinson, 133 Wis. 337, 113 N. W. 669. It was there held:
“When a purchaser, has the right to subject the article to trial, the mere use is, of course, ambiguous, for it may be for the purposes of trial; but when the test is complete so that the purchaser has to his satisfaction ascertained all that trial can teach him and determined that the article does not satisfy the contract, then that element of ambiguity is eliminated in the construction of any subsequent acts of dominion or use. After that, certainly any unnecessary application of the article to his advantage and benefit would in honesty be consistent only with a decision to become or continue owner.”
But it was also said:
“Doubtless there may be situations where some use of an article after unsatisfactoriness is fully established is unavoidable to protect the purchaser from injury or serious inconvenience resulting from the very predicament in which he is thrown by making the trial, as, for example, one who discovers defects in the trial drive of a horse and wdio merely continues the use to return to the starting point. In such case the continued use might well fail to evince any intent to retain the article.”
[316]*316This rule has been applied in the following cases among others: Buck v. Racine Boat Co. 180 Wis. 245, 192 N. W. 998; J. L. Owens Co. v. Whitcomb, 165 Wis. 92, 160 N. W. 161; J. B. Bradford Piano Co. v. Baal, 166 Wis. 134, 164 N. W. 822.
The use made by the defendant of the tractor after his right of rescission was complete under the terms of his contract was to dispose of two small threshing jobs mainly for the benefit and convenience of his customers. It is apparent from the evidence that to have passed by these jobs and returned with another outfit would have entailed considerable expense, and under the circumstances the use of the tractor was from a practical standpoint necessary. The finding of the jury that the defendant did not, under all the circumstances, accept the tractor and waive the right of rescission, is amply sustained by the evidence. We are very much impressed, upon consideration of the whole record, with the fact that the defendant acted in the utmost good faith and that he was not looking for a pretext to avoid the terms of the contract and secure the use of a machine for nothing. While the defendant did not comply with the exact terms of his contract in respect to sending notice by registered mail or telegram, he did send notice upon which the plaintiff acted. In view of the fact that to the knowledge of the plaintiff the machine never did operate properly, the plaintiff is in no position to claim the benefit of any failure of the defendant to perform. Under the contract it was the duty of the plaintiff to deliver a machine which would operate properly, and until it had done that it was chargeable with notice of defects from the beginning. This is not a case where a machine was delivered which complied with the contract and afterward failed to operate properly. Its expert Allen who went there to start the machine and put it in order knew that the machine did not operate properly. He left it in the hope that it would. It apparently never did.
[317]*317What we have said in regard to the first notice applies as well to the second.
Plaintiff further contends that the counterclaim of the defendant for damages is inconsistent with the right of rescission on the part of the defendant. In the second counterclaim the defendant claimed the right to damages for breach of warranty in the alternative. Within the rule laid down in Astin v. C., M. & St. P. R. Co. 143 Wis. 477, at 488 et seq. (128 N. W. 265), and cases cited, the defendant was not required to determine at his peril the exact ground of liability. The only advantage which the plaintiff could have derived from compelling the defendant to elect at the beginning of the trial was that he might have thereby compelled the defendant to stand upon a wrong theory. All the matters set out in the counterclaim arose out of the same transaction, related to one and the same thing. Until there is a satisfaction or final determination, the assertion of one claim does not, in the circumstances of this case, necessarily and permanently waive all right to the other. The defendant was clearly within his rights in asserting in the alternative his right to recover upon whichever theory should conform to the facts to be found by the jury. If it be conceded that the person Dyer who came there in company with Mr. Kuester, the local agent of the plaintiff company, was not an agent of the plaintiff, there is ample evidence to sustain the finding of the jury upon the decisive questions in the case. The court struck from the record the testimony relating to what Dyer said, and while the court did not in his instructions repeat the injunction to the jury to disregard the evidence, we think the caution which the court gave the jury at the time the evidence was stricken was sufficient. ■
It is by no means clear that there was not sufficient prima facie proof of Dyer’s agency. It appears, that the defendant notified the plaintiff of the failure of the machine to comply with the warranty; that in response to such notice Dyer [318]*318appeared,. claiming to act as agent of the plaintiff, he being accompanied by Mr. Kuester, the' plaintiff’s local agent. Dyer then proceeded to adjust and repair the machine so as to make it comply with the warranty, which-it was plaintiff’s duty to do under the contract. Dyer acted for no one but plaintiff nor in any other capacity than as plaintiff’s agent. The plaintiff at no time nor in any manner disaf-firmed the acts of Dyer nor denied that Dyer was its agent. These circumstances are sufficient to sustain an inference that Dyer was in fact plaintiff’s agent. 1 Mechem, Agency (2d ed.) § 268, and cases cited. See, also, Bautz v. Adams, 131 Wis. 152, 111 N. W. 69, to the effect that agency may be established by circumstantial evidence.
By the Court, — Judgment affirmed.
A motion for a rehearing was denied, with $25 costs, on March 9, 1926.