Fisk v. Tank

By the Court, Dixon, C. J. The appellant’s application to the court to compel the respondent to elect upon which of the claims stated in his complaint he would proceed, and to — 299 — abandon the residue, was properly denied by the court. The complaint is not, as seems to have been supposed by the appellant’s counsel, either double or multifarious. It does not contain a statement of several distinct causes of action improperly blended together, or of separate injuries to different chattels, or separate demands upon different contracts, as upon two or more promissory notes, or a note and book account, or the like, but it proceeds for damages for several breaches of one contract. It is obvious that in such a case, the plaintiff may, either at common law or under the code, in a single statement or count, allege as many breaches as he chooses, and when he comes to the trial be permitted to give evidence concerning any or all of them. The deposition of the defendant Verleclc was properly admitted. The want of a venue or statement of the place where it was taken, either in its margin or the certificate of the commissioner before whom it was taken, does not invalidate it. It is said that without such statement perjury cannot be assigned upon it. The authorities cited by the respondent’s counsel, clearly establish the contrary. They show that, upon a trial for perjury, when the venue is wrongly stated in the [affidavit or deposition, such written statement may be disproved, and the true place of administering the oath may be shown by parol testimony. Such recital is not so much a part of the deposition or affidavit as to make it conclusive, but is prima facie evidence merely. A fortiori the true place may be shown where there is no recital. King vs. Emden, 9 East, 437; Rex vs. Spencer, 1 Carr. & Payne, 260 (11 E. C. L., 384). Eor all ordinary purposes the place of taking sufficiently appears on the face of it and the accompanying papers. In this respect it is in strict compliance with the rule (61 old Rules) which requires the return to state the time when the testimony was taken; but makes no reference to the place where it was taken. The objection that the deposition was reduced to wilting by the deponent, instead of the commissioner, is not supported by the authorities cited. They only establish what is alike consistent with reason and justice, that depositions to be admissible, must be taken in the regular course of judicial examination — that the witness — 300 — must be first duly sworn, and the questions put to Mm, and that his answers orally given must be reduced to writing at the time of the examination — and that if they be not so taken on oath, but are reduced to writing in advance of such examination, by the deponent, the party or some third person, or are copied from such previously written statement, they must be rejected. We are not aware that it has been held by any court that the reduction to writing by the deponent, of his answers orally given, vitiates the deposition. On the other hand, two of the cases cited, Carmalt vs. Post, 8 Watts, 406, and Clement vs. Hadlock, 13 N. H., 185, expressly sanction it. We can see no objection to it. Some courts have even gone as far as to hold that it 'is no objection to the competency of a deposition, that it is in the handwriting of the party or Ms agent; that it will be presumed to have been so written in the presence and under the superintendence of the magistrate. Ray vs. Walton, 2 A. K. Marshall, 71. This is going much further than is necessary to sanction the admission in the present case, and further, perhaps, than we would feel warranted in going. Our legislature, in prescribing the method of taking depositions of witnesses witMn this state (sec. 16, chap. 98, Statutes of 1849 ; sec. 16, chap. 137, Statutes of 1858), seem to have laid down a wholesome rule upon the subject — that they shall be written by the magistrate or by the deponent, or by some disinterested person in the presence and under the direction of the magistrate. The objection that a part of the deposition is in the handwriting of the respondent, is unfounded in fact. The exhibits or papers annexed, strictly speaking, form no part of the deposition. The deposition, that is, the oral testimony of the witness as taken and reduced to writing, may be admitted, and the exMbits, if there be any thing in their character wMch renders them incompetent, may be excluded. The exhibit marked “ B,” being a copy of the original contract, the non-production of wMch was not sufficiently accounted for, was improperly admitted. As to the other ex-Mbits, there seems to have been some confusion of ideas, owing to the mixed relation of party and witness, in which — 301 — the deponent Yerbeóle stood to the action. As a mere witness, there can he no doubt that such statements, offered in the form of exhibits annexed to a deposition, or in some other manner, are inadmissible. But in his character of a party to the suit, with the fact of partnership between him and the defendant Tank not open to investigation, but admitted by the pleadings, they were properly received as admissions in writing of the nature and extent of the contract. , Eor this purpose the admissibility of a paper signed by him is not affected by the fact of its having been written by the opposite party, and such circumstance would, at most, go only to the degree of credit to be given to it, according to the nature and circumstances of the transaction. For the rule as to admissions by partners, see Collyer on Partnership, § 423, and authorities there cited. The appellant, by his failure, within the time prescribed by law for an answer, to deny, by affidavit, the existence of the partnership as alleged in the complaint, in accordance with the provisions of sec. 90, chap. 98, Statutes of 1849 (sec. 98, chap. 137, Statutes of 1858), must be deemed to have admitted it. The statute declares that, in the absence of such denial, such averments shall be taken to be true. This court (Whitman vs. Wood, 6 Wis., 676) has so decided; and agreeably to that decision it only remained for the respondent to prove the making of the contract by the firm. The only other question material to be noticed before we come to the merits of the controversy, is that of variance, which was raised on the motion for a nonsuit. It consists in the pleader’s omission to allege in the complaint a part of the contract by which it was agreed that if the work should in any manner fail to answer the purposes intended or prove defective, .on a trial of twenty days, under an engineer of Yerbeóle's approval or furnishing, it was to be made good by repairs of defects. The contract, in all other respects, is stated truly. Tinder the system of pleading and practice which prevails at the common law, there can be little doubt that this failure to prove the contract as laid would be fatal. But under the system now established by law, more liberal as well as more just rules — 302 — obtain, and actions are not to be defeated by slight -variances or imperfections in the pleadings. It is declared by statute, sec. 83, chap. 125, that “no variance between the allegation in a pleading and the proof, shall be deemed material, unless it shall actually mislead the adverse party to his prejudice in maintaining his action or defense upon its merits. Whenever it shall be alleged that the party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled, and thereupon the court may order the pleading to be amended upon such terms as may be just.” By the next section it is enacted that “ when the variance is not material as provided in the last section, the court may direct the fact to be found in accordance with the evidence, or may order an immediate amendment without costs.” It is not contended that the appellant was in any manner misled or taken by surprise. Indeed, the case shows that he could not have been, for it appears that a copy of the contract as proved, was served upon his attorney some months before the trial. It was then clearly a case of immaterial variance, which the court, under the section last quoted, might disregard, or order an immediate amendment without costs, in its discretion. It decided to pursue the former course, and over that decision we have no control. Many of the principles applicable to the merits of this case, have been heretofore settled in this court, and it will, therefore, be unnecessay for us to consider them with reference to the adjudications of other states. In the case of Getty et al. vs. Rountree et al, 2 Chandler, 28, the following points were decided: 1. That in executory contracts to furnish articles for a specific purpose, especially by manufacturers, there is an implied warranty that the article delivered shall answer the purpose for which it was designed, inasmuch as the purchaser has not an opportunity of inspecting or testing it; 2. That in case of a warranty, direct or implied, where the article purchased proves defective or unfit for the use intended, the purchaser may, without returning or offering to return it, and without notifying the vendor of its defects, — 303 — bring Ms action for tbe recovery of damages, or if sued for tbe price, may set up and bave sncb damages allowed to Mm by way of recoupment from tbe sum stipulated to be paid. These points were fairly raised, and, as we think, correctly decided. There was another point, however, not involved in the case, upon wMch the court attempted to rule, to which we do not wish to give our unqualified assent. It was said that where there is a warranty but no fraud, the vendee is not entitled, against the will of the vendor, to return the article and recover back the price paid; that in such case his only remedy is by suit for damages, or by’'recoupment, in case he is sued for the purchase money. As applied to the facts of that case, provided the court had been called upon to determine whether the defendants had the right, at the time the action was commenced, to return the pump about which the suit arose, such decision might have been correct. There is, however, much reason for saying, and many respectable authorities hold, in respect to executory contracts particularly, that in addition to the remedies above stated, the vendee may, in case the warranty be not complied with, altogether refuse to receive the article; or may take and keep it for such time only as may be necessary for a fair examination, and then return it on discovering its defects; in wMch case he is not considered as having received it at all; and in either case, if he has paid for the same, may sue for- and recover back the price. See note to Cutler vs. Powell, 2 Smith’s L. C., 5th ed., page 32, and cases there cited. Upon this point we wish to express no opinion. We desire merely to reserve it. It was entirely outside of the case then before the court, and is equally so now; and, therefore, could not be adjudicated in either. No return, or offer to return the article purchased was. there made, and no rights thereupon claimed; and the same is true here. With this exception, the decision meets our entire approval. The opinion exhibits a clear understanding and just discrimination of the authorities, and renders an examination of them here, upon the points properly determined, entirely unnecessary. This disposes of a large number of exceptions taken by the appellant’s counsel, not necessary to be enumerated here, which are founded — 304 — upon tbe supposed want of a return or offer of tbe machinery to tbe appellant, or of notice to him of its defects. This case is not analagous to those cases, to some of which we have been referred, where, by the stipulations of the contract, or the course of dealing between the parties, the ven-dee is bound within a specified or reasonable time to return the property, with his dissent, or to keep it on the terms of the offer. In such transactions, the failure to return according to the terms of the agreement is an election to keep the property at the price agreed, and a waiver of all claim to damages on account of defects. Such was not the agreement between these parties. The sale in the first instance was absolute, provided the respondent chose so to consider it. His right to recover damages does not depend at all upon his returning or offering to return the articles purchased. If he could have done so, it would only have been necessary for the purpose of enabling him to recover back the purchase money paid and of relieving himself from future payments. He seeks neither of - these things, but merely asks compensation for the losses sustained by a breach of the warranty. There is another question with which the case seems to have been unnecessarily burdened, and from which we desire to relieve it as early as possible. It seems to have been supposed by both sides, that the respondent’s right to recover depended in some way upon his neglect to call upon the defendants to make repairs, or their refusal to do so. With this idea proofs were offered, some of which were received and some rejected; instructions were asked, which were in part given and in part refused; and many exceptions were taken. If we rightly understand the contract, all these matters which had reference to the transactions between the parties after the expiration of twenty days from the time of the setting up and delivery of the machinery, were entirely foreign to the controversy. After this period the contract seems to have been treated as if it were still executory on the part of the defendants. This was clearly wrong. The terms of the agreement are too plain to be misunderstood. It was completely executed on the part of the defendants, — 305 — when the machinery was set up and delivered, except so far as they reserved the right to repair, if the work, upon trial in the manner specified, proved defective, the time for which was expressly limited to the period -of twenty days. Without this stipulation the defendants would not have had the privilege of repairing, nor could the plaintiff- have required it of them. The rights and obligations flowing from the stipulation were limited to defects discovered during the time fixed for the trial of -the machinery. Thereafter the defendants were no more bound to repair the machinery than any stranger would have been, and the plaintiff was absolved from all duty of applying to them to do so, or giving them notice of its defects. If it then proved defective he was at liberty to get it repaired elsewhere, or not at all, as he pleased. He was not bound to repair it, or supply its place with other, in order to maintain his action. His right of action for damages in nowise depended upon his subsequent conduct, or that of the defendants, but accrued to him from a breach of the contract by the delivery of machinery the defects or unsuitableness of which had not been discovered and remedied in accordance with the stipulation. In this connection it may also- be well to notice .two other principles of law sought to be applied to this case; the one that, in actions for injuries arising from the negligence and carelessness of another, the party seeking redress must be himself free from fault, and must not by his own want of care have contributed directly to the injury received; and the other, that a party who, by his declarations or conduct, has induced another to act in a particular manner, will not afterwards be permitted to deny the truth of the admission, if the consequence would be to work an injury to such person, commonly called an estoppel in pais. It appears to us that neither of these principles has any application to it The former, as a substantive ground of defense, going to defeat the whole action, applies only to suits brought to recover damages occasioned by the negligent conduct of another, and" does not apply to actions for a breach of contract like the present. The plaintiff seeks to recover damages by reason of the alleged failure of the defendants to set up and — 306 — deliver such machinery as the contract called for; and as a mode of establishing such failure, he offers proof tending to show that when it was put in operation in the manner contemplated by the parties, it did not answer the purposes for which it was intended. This was a means of proof — a knowledge of facts derived from actual experiments — and, under the circumstances, perhaps the best which the nature of the case admitted of. As experimental knowledge it was liable to be fully and fairly scrutinized and tested on the part of the defendants. They'had the right to know and to show-whether or not the trial to which the machinery was put was fair and proper. The conclusiveness of the experiments, and the weight to be given to the evidence, depended upon this. Therefore the defendants were entitled to prove, if they could, that it was the weakness of the boat or the negligence or want of skill of the ¡plaintiff or his agents, and not their defective and unskillful workmanship, which caused the unsuccessful operation of the machinery. They were entitled to do this, not because such weakness, negligence or want of skill, if shown, would have operated to bar the whole action, notwithstanding it might still appear that the engines were not in all respects suitable or such as the defendants agreed to furnish, but because it was a legitimate method of meeting, explaining or rebutting the plaintiff’s evidence and exhibiting before the court and jury the real facts of the case. The plaintiff was not bound to the defendants to use any degree of care or skill in the use of his boat or machinery, or in the management of his business. They were matters which did not concern them and about which he could suit himself. His conduct in these respects only became, the proper subject of investigation on their part, when he undertook to make it the means of showing that they had violated their contract, and then they might lawfully scrutinize it for the sake of arriving at the truth. Suppose that, being possessed of, he had resorted to, other means of proof, by which he had indubitably shown that they had broken their contract, and that in consequence thereof he had suffered' damage in the sum of $1,000, could they have shown as a matter of defense that his boat was weak and un — 307 — fit to be navigated by steam, and that if the machinery had been such as he bargained for, it would therefore have been useless to him ? Or that he had never put it to the uses for which it was intended ? Or that he had used it in such a careless and improper manner that it had thereby become wholly worthless ? We think not. We never before heard of such a defense to such an action. Suppose the purchaser of a horse, paying the full price of a good animal, with warranty of soundness, should, upon discovering that the horse was unsound and not worth one fourth the price paid, permit him through negligence to die upon his hands, could the seller, in an action against him to recover damages for a breach of the warranty, set up as a defense the purchaser’s negligence and the subsequent death of the horse? Clearly, he could not. It is needless to pursue this matter farther ; we think our views must be already understood. The doctrine of estoppel in pais seems equally remote. If it can be applied to any of the acts of the defendants here, by which they were guilty of a breach of their contract, we do not see why it is not equally applicable to every other case of a violated agreement. Equity and good conscience, no doubt, require that every man should faithfully and honestly perform his promises, but his neglect to do so will not shut him out from a full and fair investigation of the facts upon which his alleged non-performance is founded, or deprive him of the benefit of any legal testimony which he may adduce, showing or tending to show that he has fulfilled. Estoppels are sustained because it is against conscience to allow the party to assert to the contrary of what he has before said or done; but is it against conscience to give a party, prosecuted for the non-fulfillment 'of his engagement, a complete hearing in a court of justice? 1 We are not of that opinion. To say that he is estopped in such a case is to assume-the whole matter in controversy against him, to forestall the verdict of the jury, and to deny his right to an impartial trial according to the forms of the law. If the defendants refused to make repairs when by the contract they were obliged to, it is the object of this action to compensate the plaintiff in damages for the injuries which he sustained — 308 — by such refusal, but they are not thereby precluded from showing that no repairs were needed, or that those procured were excessive or unnecessary. If, in setting up the machinery in the boat, a part of her timbers were removed by the defendants, by which she was rendered materially weaker, that too was a damage to be recompensed by this action, but it did not debar the defendants from showing that the vessel was otherwise weak and insufficient, and that by that means the machinery was prevented from working well. Whether it was the originally weak and defective construction of the boat, or the weakness occasioned by the acts of the defendants ; or whether it was partly the one and partly the other, if either, which caused the failure of the machinery, were matters for the consideration of the jury, who would determine and assess the damages according to the facts found. It is contended by the respondent’s counsel that the agreement of the defendants to furnish “ machinery adapted to and suitable for the boat, and that would drive her from 12 to 15 miles per hour,” was an undertaking on their part to provide machinery that would propel her, “as she was,” at that speed. In other words, it is said that by this language they warranted her strength and capacity to endure the weight, shocks and friction of her machinery when in motion, and the force and action of winds and waves. It is difficult to frame an argument against a proposition so unreasonable and so unjust. The language does not warrant, nor did the parties contemplate it. The contract was to furnish engines and appurtenances adequate in weight, workmanship and power to run a boat of her size and dimensions at the proposed speed, it being understood that she was sufficiently strong for that purpose, of which the owner, as of course, took the risk. Few mechanics, we apprehend, could be found, who would be willing to undertake the manufacture of machinery “suitable” for boats, if thereby it was understood that they were to be held responsible for the sufficiency of such boats after their machinery was put in. It appearing from the testimony that the improvements made by the plaintiff were made after the expiration of the — 309 — time within, which the defendants stipulated for the privilege of mating them, and consequently when they were under no legal obligation to do so, the rule of damages should have been the difference in value between the machinery furnished (provided the jury found it to have been defective) and that called for by the contract, adding thereto an allowance to the plaintiff of any expenses he had actually incurred in his business, as a consequence of the failure of the defendants to perforin their contract. This last would include the expenses incurred for the board and wages of the captain, engineer and seamen, from the first of August, 1855, when the machinery was to have been delivered, to the time when it was in fact delivered, and the like expenses during the time actually lost by breakages whilst the plaintiff was testing the sufficiency of the machinery, and also during such reasonable time after the boat was laid up as, under the circumstances, was required to supply her with new and suitable engines. To these also may be added interest. We were at first in doubt whether the plaintiff’s claim for board and wages of seamen should not be confined to such time as was lost after the machinery was delivered, and up to and including a reasonable time for supplying other, on the ground of his right, upon the failure of the defendants to furnish it on the 1st of August, to consider the contract at an end and to proceed to supply himself elsewhere ; and because his waiver of performance as to time might be considered an abandonment of any claim for damages on that account. But on further consideration we are satisfied this would be wrong. A waiver in such cases is made for the benefit of the party in default, and, as against him, should be construed strictly, and liberally in favor of the party making it. It is supposed to be granted at the request of the party indulged, and should be confined to the precise right waived, (which in this case was the right to refuse the machinery after the day,-) and should not be extended to collateral matters. In this case there can be little doubt that the plaintiff was deterred from making exertions to procure other machinery by the conduct and assurances of the de310 ff.ndant, Verbeck, that that contracted for would be speedily completed. It is. almost needless for us to say, further, that the authorities cited by the respondent’s counsel, 18 Yermont, 620, an(j gp "Wend., 842, do not establish, as a measure of damages in cases like this, the sum expended by the purchaser in making repairs, or furnishing other machinery, unless it be sp expressly- agreed. In the absence of such special agreement, the parties do not. contemplate it. In those cases, where the defects, which were unimportant, extending only to a single article or small portion of the machinery and not to the whole subject of the contract, had been supplied by the purchasers on fair terms, evidence of what they had expended was admitted, as a ¡aroper means of estimating the sum to be deducted, or the true amount of damages as measured by the ordinary rule. It follows from the views that we have taken, that the judgment must be reversed, and a new trial awarded.