Neave v. Arntz

Cassoday, J. No affidavit having been made that the plaintiff’s claim exceeded the sum of $15, as required by sec. 3768, R. S., the appeal was necessarily heard on the original papers, and the return of the justice. Sec. 3767, R. S. This being so, the reversal of the justice’s judgment upon ques [176] tions of fact can only be sustained upon the ground that the findings of fact in the justice’s court are clearly unsupported by the evidence. Campbell v. Babbetts, 53 Wis., 276. “A warranty,” said Lord Abingee, 0. B., “ is an express or implied statement of something which the party undertakes shall be part of a contract, and, though part of the contract, yet collateral to the express object of it.” Chanter v. Hopkins, 4 Mees. & W., 404. Undoubtedly any assertion or affirmation made by the seller to the purchaser during the negotiations to effect the sale, respecting the quality of the article or the efficiency of the machine sold, will be regarded as a warranty if relied upon by the purchaser in making the purchase. Smith v. Justice, 13 Wis., 600; Hahn v. Doolittle, 18 Wis., 197; Austin v. Nickerson, 21 Wis., 544; Giffert v. West, 33 Wis., 621; Elkins v. Kenyon, 34 Wis., 93. Here the negotiations were conducted by the seller in person. The words employed were his own. Being his own, he must be deemed to have comprehended their significance. His assertions and affirmations were evidently made for the purpose of inducing the buyer to make the purchase. They were made respecting the quality and efficiency 'of the reaper, and clearly constituted a warranty within the rule above stated. It is true, the defendant denies having “ warranted ” the reaper, but he admits the statements which, in law, constitute a warranty. Having admitted the facts which, in law, constitute a warranty, his denial of the warranty is a mere' denial that the law is what it is. The circuit court took the facts from the lips of the defendant, but differed with him in his conclusion of law. We agree with the circuit court in its conclusion of law, and think the defendant should not be allowed to impute error to the judge for finding the facts as he testified they were. The purchaser had a right to rely upon the truthfulness of the assertions and affirmations of the defendant, and apparently did. Confessedly the machine failed to work as represented, and hence [177] there was a breach oí the warranty. The warranty and breach entitled the plaintiff to some damages at least. This being so, the judgment of the justice’s court was properly reversed. By the Oov/rt.— The judgment of the circuit court is affirmed.