The following opinion was filed July 3, 1920:
Owen, J.
The contract between the parties was in writing.' It contained no express warranty, and parol evidence to show a verbal warranty was not admissible. Ohio E. Co. v. Wis.-Minn. L. & P. Co. 161 Wis. 632, 155 N. W. 112. The statute (sub. (4), sec. 1684f — 15) provides that “In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose.” There was therefore no warranty that the engine would de[339]*339velop any particular horse-power or that it was suitable for any purpose, either express or implied, coupled with the contract of sale. The contract, however, called for a new tractor. While this is not so specifically stated in the written order therefor which constitutes the contract between the parties, it is nevertheless implied from the circumstances of the case. Where a farmer orders a certain machine from a dealer in machinery there is an implication that the order is for a new machine, and the contract cannot be satisfied by the delivery of a used, second-hand, or rebuilt machine (Grieb v. Cole, 60 Mich. 397, 27 N. W. 579), and there is an implied warranty that the machine delivered pursuant to the order is a new machine.
Defendant alleged in his answer that the tractor delivered to him was a second-hand tractor, and he contends that the evidence is sufficient to take this question to the jury. The evidence upon this question is necessarily circumstantial. The machine was newly painted and in every respect had the appearance of a new, machine. The evidence justifying the inference that the tractor was a second-hand machine may be briefly stated as follows: It is claimed that the machine was rated as a 12 — 25 horse-power tractor. This is indicated by its name — “12—25 H. P. Fair-Mor Tractor.” . While it must be held that no implied warranty results as between the parties to this action that the tractor was of 12 — 25 horse-power, nevertheless it is the inference that would naturally arise from the designation. The president of the Townsend Manufacturing Company, which company manufactured the tractor, did not deny that it was designed to be a 12 — 25 -horse-power tractor. The letter written by the Fairbanks-Morse Company, distributor of the tractor, to the defendant rather assumes that such was its rating.. In their letter they say: “We understand you claim the engine will not develop its rated H. P., and the Townsend Mfg. C“ seem willing to make a test to prove that the engine is up to guaránty in this respect.” So while there cannot be said to [340]*340be a warranty as between the parties to this action that the tractor was a 12 — 25 horse-power tractor, it may be assumed that the defendant considered that he was getting a tractor of that horse-power and the manufacturer thereof so rated it. There is evidence in the case that this tractor did not do the work ordinarily done and which may be expected to be done by an engine of that rated power. There is evidence in the case justifying the conclusion that an engine of that power would satisfactorily operate defendant’s separator. The evidence is quite conclusive that it failed to do so and that it was unable to satisfactorily operate the separator when fed at more than about half capacity. Besides its failure to satisfactorily run the separator, there is evidence to show that it did not display the power of a 12 — 25 horse-power engine in hauling the separator over the road. It failed to pull the separator up a hill where a 10 — 20 engine had pulled the same separator. This lack of power strongly indicates that something was wrong with the engine. In addition to this, we have what the designer of the tractor and the president of the company manufacturing the same terms an unusual number of replacements. These replacements consisted of a pump, cylinder-head, intake valve, new clutches, magneto, spark plugs, and cable.
Breakages and replacements are not ordinarily expected of a new machine. They are to be expected from the use of an old machine. To be sure, Mr. Townsend attributed the cause of these breakages to the fact that the engine was overloaded. It is significant, however, that he did not so inform the defendant at the time he was endeavoring to make the engine operate the separator. Neither he nor any of the experts nor either of the plaintiffs told the defendant that the engine was of insufficient horse-power to properly operate the separator. On the contrary, one of the plaintiffs assured the defendant that they would fix the engine so that “it would pull the insides out of that separator.” The conclusion of Mr. Townsend, therefore, that the number of [341]*341breakages was the result of overloading the engine must be substantially discounted by the fact that his conduct in endeavoring to make the engine do the work was inconsistent with the idea that the work imposed upon it was excessive for its rated horse-power. It is also a significant fact that the replacements were all readily and willingly made by the plaintiffs without charge to the defendant. Of course it may be admitted that a new machine sometimes behaves just as this tractor did. It is submitted, however, that it was the behavior of an old and worn machine rather than that of a new one. In addition to these circumstances there is positive evidence of prior use of the machine. One of the plaintiffs testified that they furnished a new cable because the old one had become oil-soaked. If a cable would become so oil-soaked as to require replacement by a new one during the short period of time that this tractor was in operation, it seems certain that they are short-lived. Both clutches on the drive gear broke. The defendant testified: “The clutch sleeve had too much play on the crank shaft; it zz'as worn and much too loose.” The hole in the drawbar showed wear. This was admitted by the plaintiffs, who said it was the-result of testing it at the factory. The cylinder-head leaked water into the kerosene pump — a result hardly to be expected from a new engine. “It always missed on that one cylinder just as soon as it got to pulling, and it never did yet and never will work on that,” according to the testimony of one of defendant’s witnesses who worked with him in the operation of the threshing outfit. We think the evidence was sufficient to take to the jury the question of whether the tractor delivered in fulfilment of the order was a new or second-hand machine.
We do not know what view the trial court took of this feature of the case. According to the statement of the trial judge, he directed a verdict because the defendant had accepted the machine and had waived his right to rescind the contract. But even though the defendant did accept the [342]*342machine, and waived his right to rescind the contract, he was nevertheless entitled to damages for the breach of the warranty that the tractor was a new machine, and was entitled to a verdict as to the amount, which should be applied in diminution or extinction of the purchase price. Sec. 1684i — 69, Stats. But, upon the evidence, we do not think it can be held, as a matter of law, that the defendant had lost his right to rescind for breach of warranty. It is without dispute that within three days of the time he was told by a representative of the company on or about Thanksgiving Day that he could do nothing further to make the engine operate the separator, the defendant told one of the plaintiffs to get the tractor, that he was through with it.
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The following opinion was filed July 3, 1920:
Owen, J.
The contract between the parties was in writing.' It contained no express warranty, and parol evidence to show a verbal warranty was not admissible. Ohio E. Co. v. Wis.-Minn. L. & P. Co. 161 Wis. 632, 155 N. W. 112. The statute (sub. (4), sec. 1684f — 15) provides that “In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose.” There was therefore no warranty that the engine would de[339]*339velop any particular horse-power or that it was suitable for any purpose, either express or implied, coupled with the contract of sale. The contract, however, called for a new tractor. While this is not so specifically stated in the written order therefor which constitutes the contract between the parties, it is nevertheless implied from the circumstances of the case. Where a farmer orders a certain machine from a dealer in machinery there is an implication that the order is for a new machine, and the contract cannot be satisfied by the delivery of a used, second-hand, or rebuilt machine (Grieb v. Cole, 60 Mich. 397, 27 N. W. 579), and there is an implied warranty that the machine delivered pursuant to the order is a new machine.
Defendant alleged in his answer that the tractor delivered to him was a second-hand tractor, and he contends that the evidence is sufficient to take this question to the jury. The evidence upon this question is necessarily circumstantial. The machine was newly painted and in every respect had the appearance of a new, machine. The evidence justifying the inference that the tractor was a second-hand machine may be briefly stated as follows: It is claimed that the machine was rated as a 12 — 25 horse-power tractor. This is indicated by its name — “12—25 H. P. Fair-Mor Tractor.” . While it must be held that no implied warranty results as between the parties to this action that the tractor was of 12 — 25 horse-power, nevertheless it is the inference that would naturally arise from the designation. The president of the Townsend Manufacturing Company, which company manufactured the tractor, did not deny that it was designed to be a 12 — 25 -horse-power tractor. The letter written by the Fairbanks-Morse Company, distributor of the tractor, to the defendant rather assumes that such was its rating.. In their letter they say: “We understand you claim the engine will not develop its rated H. P., and the Townsend Mfg. C“ seem willing to make a test to prove that the engine is up to guaránty in this respect.” So while there cannot be said to [340]*340be a warranty as between the parties to this action that the tractor was a 12 — 25 horse-power tractor, it may be assumed that the defendant considered that he was getting a tractor of that horse-power and the manufacturer thereof so rated it. There is evidence in the case that this tractor did not do the work ordinarily done and which may be expected to be done by an engine of that rated power. There is evidence in the case justifying the conclusion that an engine of that power would satisfactorily operate defendant’s separator. The evidence is quite conclusive that it failed to do so and that it was unable to satisfactorily operate the separator when fed at more than about half capacity. Besides its failure to satisfactorily run the separator, there is evidence to show that it did not display the power of a 12 — 25 horse-power engine in hauling the separator over the road. It failed to pull the separator up a hill where a 10 — 20 engine had pulled the same separator. This lack of power strongly indicates that something was wrong with the engine. In addition to this, we have what the designer of the tractor and the president of the company manufacturing the same terms an unusual number of replacements. These replacements consisted of a pump, cylinder-head, intake valve, new clutches, magneto, spark plugs, and cable.
Breakages and replacements are not ordinarily expected of a new machine. They are to be expected from the use of an old machine. To be sure, Mr. Townsend attributed the cause of these breakages to the fact that the engine was overloaded. It is significant, however, that he did not so inform the defendant at the time he was endeavoring to make the engine operate the separator. Neither he nor any of the experts nor either of the plaintiffs told the defendant that the engine was of insufficient horse-power to properly operate the separator. On the contrary, one of the plaintiffs assured the defendant that they would fix the engine so that “it would pull the insides out of that separator.” The conclusion of Mr. Townsend, therefore, that the number of [341]*341breakages was the result of overloading the engine must be substantially discounted by the fact that his conduct in endeavoring to make the engine do the work was inconsistent with the idea that the work imposed upon it was excessive for its rated horse-power. It is also a significant fact that the replacements were all readily and willingly made by the plaintiffs without charge to the defendant. Of course it may be admitted that a new machine sometimes behaves just as this tractor did. It is submitted, however, that it was the behavior of an old and worn machine rather than that of a new one. In addition to these circumstances there is positive evidence of prior use of the machine. One of the plaintiffs testified that they furnished a new cable because the old one had become oil-soaked. If a cable would become so oil-soaked as to require replacement by a new one during the short period of time that this tractor was in operation, it seems certain that they are short-lived. Both clutches on the drive gear broke. The defendant testified: “The clutch sleeve had too much play on the crank shaft; it zz'as worn and much too loose.” The hole in the drawbar showed wear. This was admitted by the plaintiffs, who said it was the-result of testing it at the factory. The cylinder-head leaked water into the kerosene pump — a result hardly to be expected from a new engine. “It always missed on that one cylinder just as soon as it got to pulling, and it never did yet and never will work on that,” according to the testimony of one of defendant’s witnesses who worked with him in the operation of the threshing outfit. We think the evidence was sufficient to take to the jury the question of whether the tractor delivered in fulfilment of the order was a new or second-hand machine.
We do not know what view the trial court took of this feature of the case. According to the statement of the trial judge, he directed a verdict because the defendant had accepted the machine and had waived his right to rescind the contract. But even though the defendant did accept the [342]*342machine, and waived his right to rescind the contract, he was nevertheless entitled to damages for the breach of the warranty that the tractor was a new machine, and was entitled to a verdict as to the amount, which should be applied in diminution or extinction of the purchase price. Sec. 1684i — 69, Stats. But, upon the evidence, we do not think it can be held, as a matter of law, that the defendant had lost his right to rescind for breach of warranty. It is without dispute that within three days of the time he was told by a representative of the company on or about Thanksgiving Day that he could do nothing further to make the engine operate the separator, the defendant told one of the plaintiffs to get the tractor, that he was through with it. Plaintiffs themselves admit the substance of such a conversation, but are uncertain as to the date. They do, however, fix it as sometime during the month of December. Failing to secure satisfaction from the plaintiffs, he wrote to Fairbanks-Morse Company, the distributor of the engine, in March, as set forth in the statement of facts. He made no use of the engine whatever from the time it was abandoned, about Thanksgiving Day, except that during the following spring he tried it on a disk to see if it would do ordinary farm work, with a view of making a proposition to buy the tractor apcl pay what it was reasonably worth. This use of the tractor was in the nature of a test and could not be construed as an acceptance thereof. Fox v. Wilkinson, 133 Wis. 337, 113 N. W. 669; Kelsey v. J. W. Ringrose Net Co. 152 Wis. 499, 140 N. W. 66.
It is the settled law, of course, that the purchaser must exercise his option to rescind with promptness upon the discovery of the defect which constitutes the breach of warranty. Assuming that. the tractor delivered was secondhand, there was no way by which that fact could be discovered except by use thereof. It was not patent upon mere observation or casual inspection. The worn hole in the drawbar was the only patent evidence of its prior use. [343]*343With reference to this, however, the defendant received the assurance of one of the plaintiffs that it was the result of testing it out in the factory. The subsequent experience was but cumulative evidence tending to justify the conclusion that the tractor had had prior usage. The defendant was entitled to suspend judgment upon the question so long as plaintiffs were endeavoring to make the engine perform the work which it seems it might reasonably be expected to perform, and he was under no obligations to rescind until that time.
We therefore think the trial court was in error in not submitting the case to the jury upon the questions herein indicated, for which reason there must be a new trial.
By the Court. — Judgment reversed, and cause remanded for a new trial.
On September 25, 1920, a motion for a rehearing was denied, with $25 costs, and the following opinion was filed September 28, 1920:
Upon a motion for rehearing, Respondents insist that the court erred in holding that there was an implied warranty that the tractor delivered was a new machine, on the ground that-there is no implied warranty of quality or fitness, except as specified in sec. 1684f — 15, Stats., which does not include the warranty declared in the opinion of the court. This contention seems to merit a response from the court. We suggest, however, that, if the contention were sound, there is little likelihood that it would affect the result. No honest or fair-dealing man would sanction for a moment, as sound or just, a proposition of law that would turn out of court as remediless one who has received from a dealer in machinery a second-hand machine in fulfilment of an order for a new machine. An attempt to palm off a second-hand machine on a purchaser -under such circumstances is fraud, if nothing else, and the principles of that [344]*344branch of the law may be readily invoked to protect the purchaser if no other remedy exists.
However, we think the statute, sec. 1684i — 15, imports into the transaction the implied warranty declared in the opinion of the court. That section provides: “An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade.” Where one orders from a dealer in machinery a specified machine he expects a new and not an old or second-hand machine, unless a second-hand machine is specifically mentioned in.the order. A new machine is within the contemplation of both parties. This is so universal as to constitute a usage of trade of which this court will not hesitate to take judicial notice. By virtue of this usage of trade the contract of sale of the tractor in question was coupled with a warranty as to the quality of the tractor delivered, viz. that it was a new tractor. Because of the seeming confidence with which respondents’ attorneys challenge the conclusion of the court in this respect, we take this occasion to indicate that our conclusion was not arrived at without due appreciation of the provisions of the statute relied upon to establish its fallacy. As no other contentions made on the motion for rehearing are considered of sufficient merit to require special mention, it follows that the motion for rehearing must be denied.
The mandate, however, should be modified so as to deny costs to appellant for printing the case. Rule 6 of this court requires the appellant to print a case “containing an abridgment of the record, so far as necessary to present the questions for decision.” Rule 44 provides that “No costs shall be taxed for printing any case, supplemental case, or brief unless these rules shall have been complied with.” The entire bill of exceptions was printed verbatim in the printed case. No attempt at abridgment was made. The provisions of Rule 6 were utterly ignored.. The mandate of the court is therefore modified so as to provide that appellant shall have no costs for printing the case.