Minnesota Thresher Manufacturing Co. v. Wolfram

PiNney, T. 1. The evidence strongly tends to show that the transaction in respect to the machine No. 12,080, between the plaintiff and defendant, was wholly outside' of the agency contract between the parties, and was, in fact, a sale by the plaintiff of this machine to the defendant, so that he might insist upon the warranty which the evidence tends to 486 show was made at the time the machine was sold to him by plaintiff’s agent Dean, and the consequences of the alleged breach thereof. Whether it was a transaction within or wholly outside of the agency contract should have been submitted to the jury under proper instructions from the court. The circuit court appears to have held that by the provisions of the agency contract, contained in the statement of the case, the defendant was barred, as a matter of law, from insisting upon the breach of warranty asserted in the answer. This view of the case is, we think, erroneous. 2. The defendant, in his answer, insisted upon the right to rescind the sale, for the reason that the machine did not answer the terms of the warranty, and that he had notified the plaintiff thereof since the discovery, and within a reasonable time, offering to return the machine. Warder v. Fisher, 48 Wis. 338; Paige v. McMillan, 41 Wis. 337. The defendant averred in his answer that, by direction of the plaintiff, he had stored the machine in a designated place, where it was, and ever since had been, subject to the plaintiff’s control. There was evidence tending to support the defense that the contract of sale had been rescinded. It was to the effect that, after some correspondence in respect to the return of the machine and rescission, the transaction was adjusted by the defendant, with the plaintiff’s general agent, so that the tools and extras were returned and credited by the plaintiff to the defendant to the amount of $19.47, and by the plaintiff sending the defendant, under date of September 8, 1893, an invoice of the engine and separator No. 12,080, by which it was consigned to the defendant for sale on commission, and charged to him at $350, the regular price at which such machines were charged up to agents for. sale. According to the evidence, the plaintiff not only took and received back the tools and extras furnished with the machine upon its sale, but practically took back the machine, by making the defendant’s actual possession of it the pos 487 •session of the plaintiff, as its bailee, for its sale on commission ; so that the plaintiff received back all that it had parted with under the sale, and thus seems to have assented to the ■defendant’s claim of rescission. The defendant, under the evidence, was entitled to have his claim of defense in this respect submitted to the jury. The circuit court erred in withdrawing it from the consideration of the jury, and in directing a verdict for the plaintiff. By the Court. — -The judgment of the circuit court is reversed, and the cause remanded for a new trial.