Rhein v. Burns

156 N.W. 138, 162 Wis. 309, 1916 Wisc. LEXIS 143

• Court: Wisconsin Supreme Court
• Decided: February 1, 1916
• Status: Published

Opinion

MaRShall, J.

The court instructed the jury in respect to the question as to whether plaintiff made for defendants a machine that would wind absorbent cotton in a satisfactory manner for the general trade, that they should determine from the evidence whether the machine agreed upon included a header device as a constituent part of it, and answer the question in view of their determination in that respect.

It is contended that the instruction referred to was erroneous as there was no evidence that the contract called for a machine including a header device. True the direct evidence was substantially as counsel for appellant claims, yet there was no controversy but what the winding machine mentioned in the agreement was not a mere winding device. It was conceded, on the trial, that the machine included a weigher device, and there was ample evidence showing that the header device, weigher device, and winding device were essential features of a complete machine for doing the work contemplated, and that plaintiff set up the machine with such three features as if the contract covered each as a constituent part of the entirety, denominated a winding machine. The term “winding machine” appears clearly ambiguous when it is conceded that it is more than a mere winding device. Upon the evidence, direct and circumstantial, it is considered that the trial court did not err in giving the instructions complained of.

It is further contended that the court erred in instructing the jury that in case of their finding the contract was breached, either in respect to making the machine agreed upon or in respect to giving information about putting up absorbent cotton in a manner satisfactory to the trade, to include, in answering the question covering the subject of damages, the down payment of $100 with interest and “all loss which the defendants sustained as a proximate result of the plaintiff’s failure to comply with either or both of the provisions of the contract embraced in the first and second questions, to the extent to which such loss could not have been avoided by the exercise of ordinary care and business prudence on the part of the defendants.”

As indicated in the statement, the court instructed the jury not to make any answer to the question covering the subject of whether plaintiff breached the contract respecting furnishing information, in case of their finding that it was breached in respect to making the machine .so as to satisfy the guaranty, and that no answer was given to the second question.

We are unable to understand why the jury were instructed to assess damages for breaching the contract as to both features in case of their finding there was a breach as to one. It seems there was a plain error at this point, as counsel for appellant contend, and that it is impossible to determine how much of the $300 of damages found was attributed by the jury to the feature covered by the unanswered question.

It is further contended that the court erred in not ordering judgment in plaintiff’s favor upon the ground that defendants accepted the machine by using it and by failing to give notice within a reasonable time of its rejection as not satisfying the guaranty. Such contention and others are grounded on the theory that there was a sale and delivery of property which is not the case. The contract was for doing the work of making a machine for respondents, not for the sale and delivery of property within the rule applied in Oscar Smith & Sons Co. v. Janesville Batting Mills, 150 Wis. 528, 137 N. W. 966, cited to our attention, or the rule of the Uniform Sales statutes.

The trial court was not requested to submit a question to the jury on the subject of whether respondents accepted the machine as satisfying the guaranty, and so the court,must be presumed to have determined it, so far as it was a controverted matter of fact, with all the effect of a jury finding. If there was any evidence which in any reasonable view will support it, that is sufficient. As we read the record, there is such evidence and we will rest the matter without extending the opinion by quoting the same. It may be, as contended, that the evidence of Burns> who testified on the subject on behalf of respondents, is somewhat contradictory and that the more consistent evidence was given by plaintiff, and that the circumstances rather corroborate the latter, as contended by counsel for appellant, yet we cannot say that there is no believable evidence showing that respondents never accepted the machine as satisfying the guaranty.

What has been said seems to cover all matters presented which merit special attention. As we view the case there was no definite evidence of damages for breach of the guaranty, as to the machine, except that relating to the payment on the contract of $100. The court might have given respondents an option to take judgment for that amount, thus curing the'error of directing the jury to assess damages for the fault covered by the unanswered question. We have concluded to reverse the judgment and remand the cause for a new trial, unless respondents elect in writing filed with the clerk of the trial court within twenty days after the filing of the remittitur with such clerk, to take judgment for $100 with interest thereon from the 3d day of February, 1912, and costs.

By the Court. — So ordered.