Harrison, Judd & Co. v. Crocker

Cole, J. One of the errors relied on for a reversal of the order was the refusal of the court to give the two instructions asked on the part of the plaintiffs. These requests seem to have been asked as one charge; or, at all events, there is only one exception to the refusal of the court to give them. This exception will not enable this court to review the correctness of any single instruction. The only question arising on the exception is, whether both requests, when considered as an entire charge or instruction, were correct as a proposition of law. Strachan v. Muxlow, 31 Wis., 207, and cases cited. The second instruction asked, as it seems to us, is clearly incorrect. The giving of the notes, under the circumstances disclosed in the evidence, without claiming a deduction from the contract price of the machine for the alleged [73] breach of warranty, did not per se amount to a waiver of the warranty. The execution of the notes some time after the purchase of the machine, and after the defendant had had an opportunity to try it, might be a circumstance tending to show that the defendant was satisfied with the machine; though oven for that purpose it would be entitled to but little weight or importance. At the request of the defendant, the court charged that if the plaintiffs rely upon any carelessness or unsldllfulness on his part in managing the machine, they must prove it, the presumption being that the machine was operated with ordinary care and skill; and, unless the contrary was shown, the jury must assume such to be the fact. This charge was excepted to by the plaintiffs. Also in the general charge the court instructed the jury, that, as to the mode of operating the machine, the law required that ordinary care and skill should be used in testing its merits in order to ascertain if it was such a machine as promised; and that, in the absence of testimony to the contrary, the presumption would be that ordinary care and skill were used in the operation of the machine. This charge was likewise excepted to by the plaintiffs. What would be the true rule in regard to the burden of proof where no evidence whatever was given as to the manner of operating the machine, is a question we need not determine. It will be seen that the court held that in such a case the presumption would be that the machine was operated with ordinary care and skill, and that it was incumbent upon the plaintiffs to show that it was not so used. The warranty that the machine would do good work was doubtless upon the condition that reasonable skill and care would be used in operating it; and this must be assumed to be the understanding of the parties to the contract. The defendant on the trial attempted to show, as a part of his case, that the machine did not answer the warranty, and did not do good work, although [74] reasonable skill and care were exercised in operating it. This evidence was controverted on tlie part of the plaintiffs, who attempted to prove tliat the defendant did not nsc ordinary skill in operating the machine. In this state of the evidence, there was no ground for a presumption either way, but the question should have been submitted to the jury to determine how the fact was. It was plainly a question of conflicting evidence. What presumption would arise in the absence of all evidence upon the question, was a matter not involved in the cause; and stating what the presumption would be in such case was well calculated to mislead the jury. The question should have been submitted upon the conflicting evidence given, for the jury to determine whether -the machine was used with ordinary care and skill or not. There was certainly evidence to carry the case .to the jury upon that point. We will add the remark that we express no opinion as to which party was bound to show that the machine was skillfully or nn skill fully operated. That question is not here, and we therefore do not feel called upon to consider it. But the instructions given on that point were well calculated to prejudice the plaintiffs, and for that reason a new trial is ordered. The counsel for the defendant calls our attention to some discrepancies between the printed case and the original bill of exceptions. And in the printed case there are references to the original bill of exceptions. I have read the manuscript bill, and find some defects in the printed case. The rule requires the printed case to contain everything material and necessary for a proper understanding of the ease and the points to be decided. It is expected that the bar will comply with the rule; otherwise it will be enforced against them. By-the Gottrt. — The order of the circuit court denying the motion for a new trial is reversed, and the cause is remanded for further proceedings in accordance with this opinion.