Trapp v. New Birdsall Co.

Marshall, J. Respondent’s right to recover depended primarily on a solution in his favor of one or both of these questions: (1) Was the machine well built and of good material ? (2) Was the machine capable, with proper management, of doing as much and as well as other machines of like size and .proportions ? Either or both of such questions being established for respondent, his right to recover turned on the solution in his favor of these further questions: (3) Was Avritten notice given to agent Prien, from whom the machine Avas received, and to appellant at Auburn, New York, stating in what respect the machine failed to satisfy the guaranty ? (4) Did appellant, after having reasonable — 552 — time therefor and the friendly aid secured by the contract, fail to make the'machine satisfy the guaranty? (5) Was the machine returned to the place where it was received from appellant ? Appellant’s first assignment of error is that the verdict does not cover all the questions mentioned. Complaint is made that there is no finding that the -machine was returned to the place where it was received. It is deemed sufficient to say on this point that there was ample undisputed evidence to sustain it. Appellant’s counsel admitted that the machine was received by respondent at his farm in the town of Hampden, Columbia county, Wisconsin, and proof was made that it was returned to such place after respondent claims that notice of the breach of warranty was given and the other circumstances occurred entitling him to rescind the contract of sale, and that appellant’s agent, after such return, was notified thereof and that it was subject to appellant’s control. So the failure to make a finding on that point is immaterial. It has often been said that ■where an essential fact is shown by the evidence to exist beyond reasonable controversy, a'failure to include a finding in respect thereto in the. special verdict, where one is taken, is not prejudicial error, if error at all. Bell v. Shafer, 58 Wis. 223; Baxter v. C. & N. W. R. Co. 104 Wis. 307, 313. There is, however, an insuperable defect in the verdict, and in the evidence. The contract required, as a condition of a rescission of the sale, that written notice of any failure of the machine to satisfy the warranty should be given to the agent from whom it was received, and to appellant at Auburn, New York, specifying wherein such failure consisted; that notice to one should not be deemed sufficient to satisfy such requirement, and that no agent should have the right to change the warranty, or bind appellant, by any stipulation not contained in the contract as signed, or to waive any of its conditions. There was no finding by the. — 553 — jury that a notice in writing was given to the agent from whom the machine was received, nor was there evidence to that effect. There was an attempt to satisfy the requirement of the contract on that point by proof that a written notice was given to agent Dallman at Fond du Lac, Wisconsin. If that was sufficient, a finding of the jury was not necessary, as it was not seriously disputed but that such a notice was given. The difficulty is that the machine was not received from Dallman, but from agent Prien at Columbus. It seems that Dallman was somewhat higher in authority^ or of greater experience than Prien, or that there was some other cause that led respondent to deal with him as much or more than with Prien after the machine was purchased. Yet the evidence is undisputed that the purchase was made of Prien, that the machine was received through his agency, and that it was to him that written notice of breach of warranty should have been sent. There is a further defect in the notice. The question in that regard seems to have been passed upon on the former appeal. Trapp v. New Birdsall Co. 99 Wis. 458. The contract required, as before indicated, that the notice should specify wherein the machine failed to satisfy the warranty. The evidence before was to the effect that the notice irn formed appellant that the “ engine would not do the work,” and.that respondent would “not accept it or pay for it.” On the last trial the evidence was the same. When the case was here before it seemed that saying “ the machine will not do the work,” coupled with the statement, “ I will not accept it or pay for it,” clearly did not satisfy the provisions of the contract. Therefore we-decided that the notice was insufficient, saying that it manifestly did not inform appellant that the machine would not come up to the warranty, but did contain information that it would not successfully operate respondent’s threshing-machine outfit. It was then thought, and'the decision was in accordance therewith, that — 554 — when respondent said he would not keep the machine or pay for it, thereby foreclosing in advance any offer to remedy the difficulty complained of, the natural conclusion was that such difficulty was that the machine did not have sufficient capacity to operate respondent’s threshing-machine outfit. That construction of the notice was in harmony with all the evidence in the case. The language of the notice, if ambiguous at all, was not so in its literal sense, in the light of the evidence. There was no case of ambiguity under circumstances warranting a resort to extrinsic evidence in arriving at the truth, from which evidence conflicting reasonable inferences might be drawn, making a jury question under rules governing the construction of the language of contracts. Vilas v. Bundy, 106 Wis. 168. The evidence being the same now, the former decision precludes a reconsideration of the matter. The court having once spoken, whether the decision was right or wrong, what was said must stand as the truth for the purposes of this case. The doctrine is familiar, and is unbending, that when a point is-once decided in a case, and the time has passed for a review thereof, that decision must ever thereafter be received between the parties, on the question involved, as the truth. “tTudioia sunt tanqumn juris dicta et pro veritate accip>iun-tior.” There is no escape, as it seems, from the foregoing conclusion. IIow the learned trial court came to overlook the fact that on the former appeal the notice was held insufficient as a matter of law and the rule that the decision thus-made was binding on a second trial, the evidence being the same, is not perceived. Possibly it resulted from the fact-that because, in an orderly consideration of the case here,, after holding that the notice was insufficient, the contrary was assumed, hypothetically, as a basis for .consideration of a further question, likewise held to call for a reversal of the-judgment, it was supposed that the’judgment finally turned — 555 — solely on the last point decided, and that the decision on that point only was to be considered res adJjudiaata. It is not infrequent that the rule is advanced that nothing is res adjudiaata in a case except the particular point necessary to the decision. That is an extreme view of the doctrine of res addjudicata. It is resorted to sometimes by counsel to avoid the force of an adverse decision, and sometimes, seemingly, by courts as a justification for changing their position without distinctly overruling anything previously said. Such extreme doctrine has not found favor in this court. Buchner v. C., M. & N. W. R. Co. 60 Wis. 264; Brown v. C. & N. W. R. Co. 102 Wis. 137, 154; Hart v. Moulton, 104 Wis. 349. A study of those cases will show that every point in or assumed to be in a case, and considered and decided as a basis for the final conclusion reached, is as ■ effectually decided as if - it were the sole point in controversy and the only one .upon which judgment could rest. If that were not the case, when, in the orderly consideration of assignments of error on appeal, either of several are held to support the final determination reached, it would be easy thereafter, in using the decision as authority, to so shift one’s position — claiming at one time that a particular point was all that was necessary thereto, and that what was said on other points was obiter, and at other times that one of such other points was all that was necessary to the decision, and that what was said on others.was entirely unnecessary and should be considered as obiter — as to render the decision useless for any other purpose than the particular relief granted in the case. Respondent’s counsel say that, admitting that notice w7as not given of the failure of the -machine to satisfy the warranty, as required by-the contract, that was waived by the fact that the notice which was given was recognized and acted upon, an agent of appellant having visited the machine and endeavored to make it perform as guaranteed. The doctrine is familiar that under such a contract as the one — 556 — here, if the seller acts in respect to remedying defects in the machine, without the notice which the contract calls for, the omission to insist upon such notice effectually changes the contract so as to make it conform to the conduct of the parties; that such conduct waives the giving of any notice other than that upon which it is based. Kingman & Co. v. Watson, 97 Wis. 596; Sandwich Mfg. Co. v. Feary, 40 Neb. 226; Davis’ Sons v. Butrich, 68 Iowa, 94; Wendall v. Osborne & Co. 63 Iowa, 99; Mass. L. & T. Co. v. Welch, 47 Minn. 183; Sandwich Mfg. Co. v. Trindle, 71 Iowa, 600. The difficulty in applying that doctrine to the evidence in this case is that there is no evidence that appellant acted on the defective notice if one was sent. There is evidence that one of appellant’s agents visited the machine after the notice is claimed to have been given, but there is no evidence that he was sent by appellant or that appellant had knowledge of his conduct. The mere fact that the agent so acted did not bind appellant. The contract expressly provided that no agent should possess authority to add to it in any way or to waive any of its provisions. It follows, as contended by appellant’s counsel in the court below, as appears by the record, and here also, that there was an entire failure of proof in respect to compliance with the contract on the subject of notice of the. alleged insufficiency of the machine, and that there was no evidence to establish a waiver of the notice. Hence the case should have been taken from the jury as requested by appellant’s counsel. Nichols & S. Co. v. Chase, 103 Wis. 570. If we could have passed successfully the obstacles already referred to in the way of supporting the judgment, it would nevertheless have to be reversed because of errors committed on the trial, hereafter referred to. It was plainly decided on the former appeal that the warranty was not that the machine would develop its rated or any particular amount of power, nor that it would operate — 557 — Mr. Trapp's threshing-machine outfit, but that it would do as much and as well as other machines of like size and proportions; not as much as any other machine in existence of the same size and proportions, as seems to have been understood on the second trial, but as other machines — machines generally — of like size and proportions. At the commencement of the trial the line laid down by this court for future guidance in the cause appears to have been fairly understood by the trial court, but the persistent efforts of respondent’s counsel to place before the jury the fact that the machine would not successfully operate Mr. Trapp’s threshing-machine outfit though its rating was equal to the task, and that other machines of a lower rating would do the work, seem to have finally led the' court to fall into the same error as before, to a sufficient degree at least to confuse the jury and render it quite probable that the real question at issue was not passed upon by them. There is no need to prolong this opinion by referring at length and in detail to the numerous questions that were allowed over objections made by appellant’s counsel, and remarks made by the judge that were also duly objected to, showing want of comprehension of the real question for investigation, namely, Was the machine capable of doing as well and as much as other machines of the same size and proportions ? The following are a few of the many instances that might be referred to. Horatio Smith, an expert, was allowed to testify generally, that he did not think the engine in question would do as well-as another machine of like size and proportions. On his cross-examination it appeared that the other machines that he had in mind in giving his testimony were dissimilar in size and proportions to the one in question, so far as he knew; that he had never measured any of them and that his evidence was merely guesswork; that so far as he had in mind any basis for his testimony, it was the rated horse — 558 — power of different machines. In no other respect were the machines mentioned and the one in question similar in size and proportions. Notwithstanding that situation, a motion to strike out the expert’s testimony was denied. After respondent’s chief expert, Bradshaw, had declared over and over again that the engine in question developed all the power that could be expected of one with the same sized boiler and the same amount of heating surface, that it •would- develop as much as any other engine of the same construction, and that the difference between the power of the machine and others was accounted for by the fact that the former had a smaller boiler and less heating surface than the latter — that it and other machines mentioned were not of like size and proportions — and in the face of an emphatic declaration to that effect, the trial court broke in with the remark: “ He says they are. He says that the difference lies in this, not in like size and proportion, but in the ratio of the capacity to generate steam per horse power,” closing with the interrogatory to the witness, “Is that the difference?” to which the witness answered, “Yes, sir, the ratio per horse power.” The court then, addressing appellant’s counsel, said: “And he says the same thing is true between your engines rated twelve or fifteen.” Witness Bradshaw had already testified to the simple fact, not requiring the knowledge of an expert to understand, that the power of an engine with its boiler depends on the steaming capacity of the latter and on the capacity of the former to convert steam pressure into motive power, and if the latter is rated at a sufficient amount to develop fifteen horse power, yet the boiler with its fire box is only equal in steaming capacity to ten horse power, that is the limit of the power of the machine. If the learned court did not have in mind the idea that a fifteen horse power engine, according to its rating, with only effective heating surface sufficient to generate steam to work the engine up to twelve horse power, — 559 — and an engine of the same rated horse power with a boiler having steaming capacity sufficient to work the engine up to nine horse power, were not dissimilar in size and proportions, he certainly conveyed that idea to the jury and led the witness to do the same, though the latter had repeatedly said before, and also said afterwards, that the undersized boiler in the machine in question was the cause of the small capacity thereof in comparison with its rated horse power. After the occurrence above referred to, and upon the witness Bradshaw again testifying that the undersized boiler in the machine was what made it deficient in power, it being, as he said, smaller than in any other machine of a like-rated horse power that he had ever seen, appellant’s counsel, to obtain a declaration from the witness in the nature of a necessary conclusion from what he had said, asked this question: “Then the two engines are not alike?” Without giving the witness time to answer, the court said: “Well, I must suggest that you must not confuse the jury by assuming that the simple fact of construction is the basis of this lawsuit. It is the question of horse power, and that is the warranty.” At that point, evidently, the effect of the previous decision of this court had ceased to guide the trial.' The idea was prominent that respondent purchased a machine guaranteed to develop a certain amount of horse power and was entitled to recover if the effective horse power was not as much in proportion to the rated horse power as other machines. Nothing- had been said in the case, up to the time the remark quoted was made, about construction of engines, that did not bear on dissimilarity of size and proportions between the engine in question and other machines, so the jury must have understood by such remark that respondent was entitled to an engine capable of developing as much effective horse power per rating as other machines developed, regardless of physical size and proportions. Later, and immediately following the witness’s explanation — 560 — that the capacity of a boiler and its connections in effective heating surface is vital as regards size and proportions of an engine, the court said to the witness: “"What we want to "know is, Do you find that this engine in question has the same boiler capacity that others of like size and proportions have ? ” to which the witness answered: “ No, sir, no; nor one of smaller horse power.” The witness having, as indicated, many times testified that the engine had as much boiler capacity per actual horse power as other engines, but that he had never seen one with such small boiler capacity with an engine so large, the only reasonable conclusion from the remark of the court is that the judge had in mind boiler capacity to rated horse power, and that he, in effect, told the jury that similarity of size and proportions, between the machine in question and others, depended on that, and the witness answered accordingly. There can be no mistake about that, as the witness later testified emphatically that no other machine of the same size and proportions in every respect would develop any more power. The erroneous and prejudicial ideas thus placed before the jury for their guidance were emphasized and given all the significance possible without specific instructions from the bench, by inserting, as a part of the special verdict, this question: “ How many horse power was required to run and operate plaintiff’s Advance separator with his feeder, bag-ger, and blowstaeker attachments?” The answer of the jury was, “Eifteen horse power.” By the foregoing brief review of errors committed in presenting the evidence to the jury, it is manifest that appellant has not had a fair trial. The case was tried on a false theory, substantially the same as before. If there is any difference between the two trials it is in the degree only in which the court departed from the true line. In the first ■instance a wrong theory was sustained from the beginning to the end; in the last, a right start was made, in accord561 anee with the decision of this court, but the end was substantially the same as before. True, the jury decided in form, in answer to one of the special questions, that the machine was not capable of doing as much and as well as other machines of like size and proportions, but it is probable, if not reasonably certain, that since it required fifteen horse power to operate Mr. Trapp's threshing-machine outfit, and the machine in question was purchased to do that work, and other machines of like-rated horse powTer or less were equal to the task but the former was not, the jury said it was not capable of doing as much and as well as other machines of like size and proportions within the meaning of the guaranty. It is significant that counsel for respondent admit in the printed brief, as we undei’stand it, the correctness of the foregoing. But they say that the construction of the contract of warranty contended for by appellant is unreasonable; that to hold that it means just what it says, i. e. that the machine is as good in working efficiency as other machines of the same size and proportions, is to give no effect to it for the purchaser’s protection, therefore that some other construction should be adopted. To that there are several answers: First, the point was fully settled on the former trial and is not now open to change. It is respondent’s misfortune that he secured a verdict by counsel’s failure to regard the plain rule laid down for the second trial, and persistence in such failure till the trial court was swung away from the safe position first taken. Second, since the language of the guaranty is so plain that it does not admit of any other construction than that given to it, a resort cannot be had to judicial-construction to turn a bad into a good contract. If parties, with their eyes open, will make unreasonable contracts, courts cannot save them from the consequences thereof. Third, the warranty, as it reads, evidently covers all that the seller was willing to guaranty. — 562 — It bound itself to make good any defect in material and workmanship, and any deficiency in working power as compared with machines made by others, of the same size and proportions. There was a careful avoidance of any stipulation that the machine would develop any particular amount of horse power. It contemplated that the seller should not be held responsible for any fault in respect to the mere size of the boiler, in that it was not large enough to supply sufficient steam to the engine to work it up to the power of other machines having a similar sized engine in rating. The guaranty was of the machine as it was, not as it would be with a larger boiler. There is nothing so very unreasonable about that, so long at least as there was no hidden meaning in the words used to express what was intended. It seems that we make no mistake in saying that respondent’s counsel admit that the case was tried and submitted to the jury on the theory that want of a boiler large enough to develop as much power as other fifteen horse power engines was covered by the" warranty. They say appellant’s counsel should not complain, since it was shown by unmistakable evidence that the defective proportions of the engine were what rendered it incapable to come up to other machines of like size and proportions. To make that sensible, we must conclude that “ defective proportions ” in counsel’s statement, refers to the idea that the boiler was too small, and the heating surface of furnace and boiler too little, and that by the term “ similar size and proportions ” they refer to rated horse power, though it is difficult, it must be admitted, to get that sense out of the expression or determine just what counsel means. ¥e are aided by a branch of their argument further along in the brief, under the heading, intended, as it appears, to give it particular significance: “ Lack of horse power of the machine was caused by its undersized boiler.” As it was distinctly said on the former — 563 — trial, and is now affirmed, that the warranty did not insure against an undersized boiler, counsel’s argument amounts to an admission that the judgment is erroneous. By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.