Fox v. Wilkinson

113 N.W. 669, 133 Wis. 337, 1907 Wisc. LEXIS 43

• Court: Wisconsin Supreme Court
• Decided: November 5, 1907
• Status: Published

Opinion

Dodge, J.

One having a right of choice between two inconsistent positions who exercises that choice is finally concluded and confined to the rights and remedies appropriate to the position so chosen and excluded from those consistent only with the repudiated one. Since such choice is merely mental, any unambiguous act consistent with one and inconsistent with the other of the elective positions will be deemed conclusive evidence of such election. Smeesters v. Schroeder, 123 Wis. 116, 101 N. W. 363. When an article delivered in attempted satisfaction of a contract of or for sale is upon reasonable inspection ascertained to vary from the requirements of such contract, the recipient becomes vested with such a choice. He may repudiate it entirely as not being that which he purchased, or he may accept it either as satisfying the contract completely, or, under some circumstances, as satisfying it only partially, so that he may recoup its insufficiency or defect against the purchase price, or recover damages .therefor. Fairfield v. Madison Mfg. Co. 38 Wis. 346; Park v. Richardson & B. Co. 81 Wis. 399, 51 N. W. 512; Smeesters v. Schroeder, supra. In the first case he refuses to become the owner of the article, in the latter he does become such. The two are inconsistent; hence, when he adopts either alternative, he can exercise no rights consistent only with the other position. Or, concretely, if after ascertaining defects he exercises dominion and avails himself of benefits to which he could be entitled only as owner, he so declares his election to become such that he cannot afterward deny the obligations of such position, or claim the immunities which would have resulted upon a rescission. Churchill v. Price, 44 Wis. 540; Cream City G. Co. v. Fried-lander, 84 Wis. 53, 54 N. W. 28; Palmer v. Banfield, 86 Wis. 441, 56 N. W. 1090; Waller A. Wood M. & R. M. Co. v. Calvert, 89 Wis. 640, 62 N. W. 532; Kingman & Co. v. Watson, 97 Wis. 596, 73 N. W. 438; Zipp Mfg. Co. v. Pas-torino, 120 Wis. 176, 97 N. W. 904. 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 satisfactiou 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. The distinction between.using an article for purpose of test or trial and use unnecessary for such purpose, and therefore ascribed to ownership, is illustrated in several of the cited cases, notably Cream City G. Co. v. Friedlander; Walter A. Wood M. & R. M. Co. v. Calvert; and Zipp Mfg. Co. v. Pastorino. Doubtless there may be situations where some use of an article after unsatisfactoriness is fully established is unavodd--ahle 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 who 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.

Applying these rules of law to the instant ease, we find it •established as fact that about noon of August 27th the plaint iffs had so completed the trial to which they were entitled that they had ascertained that the engine would not work as .guaranteed and had determined not to accept it as satisfying the contract of sale, and had forwarded notice of such de-feet and determination to tbe seller. Whether they still had a right under the contract to make further trial, had they so desired, is immaterial, for they had declared that they did not so desire, and there is no claim or pretense that the subsequent use was made for the purpose of ascertaining the quality or effectiveness of the machine. The trial being complete and the inadequacy of the article to fully satisfy the calls of the contract being established, plaintiffs had the election to reject it altogether and rescind the sale, ox*, in certain business exigencies, to retain it as of some value and pay such sum as might be proper after due allowance for its defects. Ketchum, v. Wells, 19 Wis. 25, 33; Olson v. Mayer, 56 Wis. 551, 555, 14 N. W. 640; Charley v. Potthoff, 118 Wis. 258, 363, 95 N. W. 124. In this situation, and with this right of choice, they made use of the engine for their own benefit for the remainder of the 27th and until noon of the 28th of August. There is no proof of any special exigency rendering such use unavoidable. Under authority of our own decisions such acts can have but one construction: they must be deemed to unambiguously declare plaintiffs’ election to become owners. Palmer v. Banfield, 86 Wis. 441, 56 N. W. 1090. That, having once been exercised, concludes them and precludes them from the inconsistent course of rescission and reclamation of that which had been received by defendants as purchase price. Hence, whatever other remedy they may have, they could not maintain replevin for the horse power in question, and the judgment in favor of defendants was correct.

By the Court. — Judgment affirmed.