Boothby v. Scales

27 Wis. 626

• Court: Wisconsin Supreme Court
• Decided: January 15, 1871
• Status: Published

Opinion

Dixon, C. J.

It may reasonably be doubted whether the first answer of the defendant was not sufficient to admit proof of an implied warranty. But whether it. was or not, there was no error in permitting the amendment. The court was satisfied, and no doubt properly so, notwithstanding the affidavit of the plaintiff Platt, that it was not a case of surprise or injustice to the plaintiffs to allow it. It was obvious, as to the implied warranty which it was the object of the amended answer to set up, that the plaintiffs had all the testimony before the court and jury of which that issue was susceptible. They could rebut or disprove the implied warranty only by showing, either that they were not the manufacturers of the mill, or that Can-field was not their agent with authority to sell it, or that there was a special agreement at the time of sale that the defendant should take the mill at his own risk, whether it would work well or answer the purpose for which it was intended, or not. The two former facts the plaintiffs did not deny, nor pretend to; nor was there any intimation or pretense of the latter, although both Canfield and the defendant had been upon the stand as witnesses, and fully examined and cross-examined with respect to the bargain or transaction. And besides, Canfield was still in court, and might have been called again as a witness after the amendment was allowed, had the plaintiffs proposed to rebut the implied warranty by any testimony of the kind last referred to. They made no such offer, and it is too obvious from the whole case that they were not taken by surprise, and that their testimony was all in, to require further comment.

The other exceptions, except that to the order overruling the motion for a new trial, relate to the instructions given to the jury, and to the requests to charge which were refused. Some of these will best be considered with reference to certain general principles which govern in cases of this kind. It is well settled that where the manufacturer sells an article for a fair price, the law implies a warranty that it is reasonably fit for the use for which it is manufactured or purchased. Walton v. Cody, 1 Wis. 420; Misner v. Granger, 4 Gilman, 69; Merriam v. Field, 24 Wis. 640; Jones v. Bright, 5 Bing. 529 (15 E. C. L. 529); Brown v. Edgington, 2 Man. & Gran. 279 (40 E. C. L. 371). In Jones v. Just, L. R. 3 Q. B. 202, the rule is stated by MelloR, J., on the authority of the two cases last cited, that “where a manufacturer or a dealer contracts to supply an article which he manufactures or produces, or in which he deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, there is in that case an implied term or warranty that it.shall be reasonably fit for the purpose to which it is to be applied.” And again, where a manufacturer sells an article for a particular purpose, of which he is notified at the time bj the purchaser, he warrants it as free from latent defects rendering it unfit for that purpose. Leopold v. Van Kirk, (ante, p. 152). In Merriam v. Field, supra, it was held by this court, on the authority of an Exchequer Chamber decision, that the taking of a written memorandum containing certain express warranties upon other points, did not exclude a warranty which the law implies, and that the purchaser might sue for and recover damages upon a breach of such implied warranty. And it was furthermore held in the same case, that the purchaser was not precluded from recovering because the article purchased was present at the time of sale, if, in fact, he had no opportunity for testing or examining it.

These principles seem to dispose of the two first requests to charge, and to show that there was no error in refusing them. The buyer of a manufactured article like a fanning mill or other similar machine, having no previous skill or experience, cannot ascertain from mere inspection whether it will operate well or not, or whether it is reasonably suited to the purpose for which it was made and to which he intends to apply it. Nothing short of an actual trial or experiment will determine those questions. As well might an unskilled person be required to ascertain and take notice at his peril whether a watch will keep time by looking at its cases or machinery and the parts of which it is composed, when in treaty with the manufacturer for it, and when the manufacturer knows it is wanted to keep time, and sells it for that purpose, and receives a fair price for a good article. It would be a strange doctrine to apply to such a case, if the watch turned out upon trial to be worthless, that the purchaser’s eyes were his guide, and he himself the judge from mere inspection, and that the manufacturer could retain the price, giving nothing for it in return. Such is not the law, and clearly never ought to be. The defendant here had the right of actual experiment with the fanning mill after he took it into his possession, in order to ascertain its working qualities, and was not precluded from relying on the implied warranty because he saw the mill at the time of purchase. The first request assumed the contrary to be the law, and the second that there could be no defense except upon the special warranty alleged to have been made. Both requests were properly refused.

By the third request the court was, among other propositions, asked to charge that “ if the jury in this case should have reasonable doubts from the evidence whether any warranty were in fact made, or what the terms of such warranty were, if any was made, then you will find for the plaintiffs.” The reference here was to the alleged special warranty. The rule of the criminal law giving the accused the benefit of any “reasonable doubts” which the jury may have, is well known. That rule, however, does not ordinarily extend to civil actions; and we are not aware of any principle upon which the plaintiffs in this action could claim or were entitled to the benefit of any reasonable doubts in the minds of the jury, more than the defendant. The request was properly denied.

The fourth request to charge was erroneous, because it omitted 'entirely all ground of liability upon the implied warranty. If the jury found no special warranty, or no breach of it, they were required to find for the plaintiffs. It would have been erroneous so to have instructed.

Of the general charge it is unnecessary particularly to speak, as its correctness in most respects is vindicated by what has already been said. It appears that the alleged special warranty consisted in the affirmation of the agent Canfield, who sold the mill, that it possessed the capacities set forth in a certain printed advertisement or post-hill issued and signed by one Pendrick, who was engaged in selling the same kind of mills for himself, and which advertisement or post-bill the defendant had seen before the purchase. It appears, also, from a statement in the charge of the court, that the advertisement was read before the jury; but as it is not found in the bill of exceptions or record, we are not informed of its contents, except as we infer them from other parts of the record. The court instructed that if the jury found the agent made the affirmation, it was a warranty, and the plaintiffs were bound by it. To this it is objected that the agent was not authorized to make the warranty. One of the plaintiffs, Platt, testified: “Mr. Canfield was employed by us to sell mills merely; he was not authorized to make any warranty.” This testimony is relied upon to show that the warranty was unauthorized, and the instruction erroneous. The answer is, that the agent was authorized generally to sell, which authority included the power to sell with warranty, unless the purchaser knew the private instructions 'of the agent, or that he was exceeding his powers. Story on Agency (Red-field & Herrick), §§ 102, 132, 128, 127, 133 and 443. It is not claimed that the defendant had any knowledge whatever of the private instructions of the agent, or of any restrictions upon his power as an agent having general authority to sell.

The court further charged the jury as follows: “ The defendant has introduced evidence to prove he has offered to return the mill to the plaintiffs. In a case of a breach of the warranty in reference to matters which are the condition of the purchase, he had a right to do this within a reasonable time; and such offer would be a complete bar against the plaintiffs’ recovery to any extent. Whether such offer of return was made, and made within a reasonable time after opportunity was given to test the machine, it is for you to determine from the evidence. If there was a breach of warranty, and the offer to return was not made within a reasonable time, the defendant must pay what the mill is actually worth.” To this instruction exception was taken by the plaintiffs. We see no error in the instruction, unless it be upon the point urged against it, and also against the order refusing the motion for a new trial, that there was no evidence to authorize the submission or for the jury to consider as to the offer to return the mill having been made within a reasonable time. This in my judgment is the only doubtful or difficult point in the case, and it seems to me to be fatal to the verdict and judgment. It is settled in this state, as in several others, that for a breach of warranty without actual fraud on the part of the vendor, the purchaser is entitled to rescind the contract, and for that purpose may return the goods, or, what is the same thing, offer to return them, within a reasonable time. Woodle v. Whitney, 23 Wis. 55; Fisk v. Tank, 12 Wis. 303; Bryant v. Isburgh, 13 Gray, 607; Curtis v. Hannay,3 Espinasse, 83; Perley v. Balch, 23 Pick. 283; Dorr v. Fisher, 1 Cush. 274; Hyatt v. Boyle, 5 Gill & Johnson, 121; Franklin v. Long, 7 id. 407; Taymon v. Mitchell, 1 Md. Ch. 496; Barrett v. Strenton & Pollard, 2 Ala. 181; Same v. Same, id. 195; Kellogg v. Denslow, 14 Conn. 411; Fielder v. Stockin, 1 H. Black. 17; Warring v. Mason, 18 Wend. 425; Thompson v. Botts, 8 Mo. 710; Borrekins v. Bevan, 3 Rawle. 23; Carter v. Stennet, 10 B. Mon. 250; Milton v. Rowland, 11 Ala., 132; Ferguson v. Oliver, 8 S. & M. 332; Heastings v. McGee (Supr. Ct. Pa.), 10 Am. Law Reg. (N. S.) 338. The question as to what is a reasonable time within which to return or make the offer, is considerably discussed in the two cases in 2 Ala. 181 and 195, and some English authorities cited. It was held, and no doubt correctly, that what was a reasonable time was a question of fact for the jury under the circumstances. But in the same case, where the offer to return was made about eight months after the goods were sold and delivered, the court said, as a matter of law, that ordinarily one-half that time would be regarded as unreasonable. In the other case the court say that “ an offer to return the chattel in a reasonable time on the breach of a warranty, or where fraud has been practiced on the purchaser, is equivalent, in its effect upon the remedy, to an offer accepted by the seller, and the contract is rescinded. But the vendee in such case must act with promptness, and upon discovering that the subject-matter is not what was contemplated, he must ofler to return it. It will not excuse the failure to offer to return, that the vendor lived at a distance from the vendee, or in another state, if his residence was known. A proposition to that effect, communicated through the medium of the post-office, is equivalent to a personal offer to return, and secures to the vendee every benefit resulting from * * * If the vendee neglect to return the goods immediately upon discovering a breach of warranty, or fraud, but keep them and treat them as his own, by putting them up to sale or exercising other acts of ownership over them, he cannot afterwards reject the contract.” And see also, 14 Conn. 411, and cases cited. It seems to me necessarily to follow from the rules which, have been thus correctly laid down, that the offer to return here came too late, and that the time was most unreasonable; for, although it is a question of fact for the jury where there is any evidence for them to consider, or upon which, under the circumstances, a verdict may be sustained that the time was reasonable, yet it is clear that it must, after some lapse of time and under some circumstances, become a question of law for the court. Cases may arise where, although an offer to return was made, the court must say, as matter of law, that it came too late, and that evidence of it is not to be considered by the jury. It is then in the nature of inadmissible testimony, - which the court is authorized to reject, or to withdraw from the consideration of the jury. No jury has the' power arbitrarily to say that six months or six years is a reasonable time in which to test a fanning mill, when everybody knows that a single day, or at most two or three days, with all the conveniences at hand, is amply sufficient for that purpose. The very meaning of the rule is, that the purchaser shall have fair and sufficient time and opportunity, all the circumstances considered, including his own, to test and examine the property and ascertain whether it corresponds with the warranty or not, and if not, immediately to return or offer to return it to the seller, and claim a rescission of the contract. It is inconsistent with the nature of the right or privilege thus given the purchaser, that there should be any unnecessary delay in the exercise of it. The seller in the meantime is deprived of the use of his property, and perhaps of the opportunity for re-sale. He is liable to refund the purchase money with interest from the time of sale ; or, if it has not been paid, he loses the interest on it. These considerations are sufficient to require promptness and forbid needless delay on the part of the purchaser. If it-appears that he had ample time and opportunity to test and examine the article, and ascertain its quality or capacity with reference to the warranty, and might have conveniently done so, but neglected to do it, such neglect should be regarded as a waiver of the right to rescind, and as an election on his part to retain the property, subject to such claim for damage as he might subsequently establish.

The proof in this case was, that the defendant did not offer, to return the mill until more than six months after he had purchased and taken it into his possession, nor until after the note given for it, and upon which this action is brought, became due. It was likewise shown that immediately after the purchase he loaned the mill to a neighbor named Walton, who took it to his farm, and kept and used it for more than a month before returning it. Walton was a witness on the stand for the defendant, to prove that the mill worked badly when he used it. Whether he informed the defendant, upon returning the mill, that it was not a go6d one, or worked badly, does not appear. It is most natural to suppose that he would have done so. It furthermore appeared by the testimony of the defendant himself, that, after the mill was returned, he ran through it over one hundred bushels of wheat, some for flour for his family, and some for sale. The time when he did this is not shown, but the inference is, that it was soon after the mill was returned by Walton, which must have been about the 1st of December, 1867, the mill having been purchased on the 24th of October of that year. The defendant testified that the mill did not then do good work, or clean wheat suitably for the mill or market. He further testified that he retained it, giving no notice to the plaintiffs, until the next April, when he tried it for seed wheat; and, finding it would not do for that, he thereafter, about the 1st of May, offered to return it. It clearly seems to me that no offer to return could then be made: If he found the mill would not clean wheat suitably for ordinary purposes, why should the defendant have retained it to clean wheat for seed ? The former was certainly a sufficient test of its capacity in both respects. Or why was the mill not tested for seed wheat at the same time ? I think that by retaining the mill after the first trial, and not then immediately offering to return it to the plaintiffs, the defendant made it his own, without privilege of return, even supposing his loan of it to Walton for upwards of a month was not an absolute waiver of such privilege, which I am also strongly inclined to think. Such lending seems to me to have been the exercise of an act of ownership inconsistent with the mere right of trial or examination, which the purchaser under such circumstances has, where he intends to return the property on account of a breach of warranty or of any of the conditions of the purchase.

In this case it appears, therefore, not only that the defendant had ample time, opportunity and conveniences for testing the machine, but that he actually did so, and learned its defects long before he offered to return it to the plaintiffs. Whether, under any circumstances, a purchaser might retain a mill, or machine, or goods or chattels of any kind, so long as six months or more, without return or offer of return to the seller, and without waiving the right still- to make the offer, is a question not now requiring consideration. Such delay, to he tolerated, would without doubt require explanation and the proof of facts and circumstances excusing it, or showing it was necessary and proper; of which we have no evidence in this case.

By the Court. — The judgment of the circuit court is reversed, and a venire de novo awarded.