Warder, Bushnell & Glessner Co. v. Pischer

BaedeeN, J. The result reached on the trial of this case shows a somewhat curious complication of affairs. The plaintiff bases its right to a recovery upon the claim that it sold the binder upon the conditions set out in the statement, and that after it had been tried, and notice given that it did not work well, an agent was sent, who put it in order and made it work in full compliance with the contract. Upon proof of these facts, and that defendant refused to pay for the machine, the plaintiff had a right to recover damages for refusal of defendant to give the note as agreed, unless it was to show that the machine did not comply with the warranty, and that the defendant had effectually rescinded the contract, or that the machine was worthless. Peerless R. Co. v. Conway, 79 Wis. 622. Such damages would ordinarily be the purchase price agreed to be paid. But the undisputed proof shows that the machine was returned to plaintiff under a claim of a rescission of the contract, and that it was taken possession of and tested by plaintiff’s agents. Of course, if it was accepted by them without protest, this was a complete rescission of the contract, and plaintiff would have no right of action. The evidence is not entirely clear on the subject, and no issue was submitted to the jury that called upon them to determine the question. It was clearly in the case, and ought to have been determined. To further complicate the case, the court submitted to the jury the question of whether the machine u worked well ” upon the first day’s trial. This was not [367] claimed by the pleadings on either side, although the evidence amply sustains the finding of the jury that it did. So long as the plaintiff did not base its right of recovery upon that fact, we see no reason why it was submitted to the jurju In answer to the fourth question, the jury found that, after the written order for the machine had been signed, plaintiff’s agent agreed that defendant might take the machine home and try it, and if he was not satisfied he might bring it back, and it would be no trade. This was based upon a claim by defendant that, after the machine had been loaded and the order had been signed, he had a conversation with the agent substantially as detailed in the court’s instructions. This was claimed by defendant to be a parol modification of the written agreement, and gave the defendant a right to return the machine if for any reason he was not satisfied with itj regardless of its working qualities. The finding of the jury is attacked as being against the weight of the evidence. This claim finds considerable support in the fact that no such claim was made on the trial in justice’s court, and that the defendant then swore that he was standing on the original contract, and so notified the plaintiff’s agents. The parol modification seems to have been an afterthought developed some time after the second trial had begun. It is contrary to all the reasonable probabilities in the case, and finds but scanty support in defendant’s own testimony, when it is considered as a whole. The serious error in the case arises from the manner in which the question was submitted to the jury. As indicated in the statement, the court told the jury, after detailing the conversations between the agent and defendant, that if they found there was a conversation of the purport involved in the question submitted, and it occurred by some clear space of time after the signing of the order, then they should answer the question in the affirmative. The vice of this [368] instruction arises from the fact that the court bases the right to answer it upon a determination of the question of whether a given conversation occurred. The real question was whether the minds of the parties met, and it was mutually understood that the original contract should be changed in the particulars mentioned. That question was not submitted to the jury by the charge given, and hence constitutes prejudicial error. For all that appears in the case, this might have been mere loose talk of the agent relative to his understanding of the terms of the original contract. Solemn written contracts cannot be brushed aside by mere casual conversations. The minds of the parties must meet, and the terms of the new agreement be established with the same certainty that is required of other contracts, or it will not be recognized. The plaintiff raises a further question as to the authority of the agent to alter or vary the terms of the written order. It is argued that the change claimed relates to the warranty of the machine, which the agent had no authority to alter. No notice of limitations upon the agent’s authority was brought home to defendant. Within the rule stated in Bannon v. C. Aultman & Co. 80 Wis. 307, we hold that the agent did not go beyond his authority in the matter complained of. There is nothing in the written order limiting such authority. The alleged change did not affect the warranty of the machine. If made, it simply gave the defendant the right to say whether the machine suited him or not. It might have filled the warranty in every respect, and yet not have been satisfactory to defendant. By the Court.— The judgment is reversed, and the cause is remanded for a new trial.