Port Huron Engine & Thresher Co. v. Clements

Oassoday, O. J. 1. The fact that two of the notes were not payable at the time the judgments were entered furnished no grounds for setting aside the judgments. The warrant of attorney given with each note expressly authorized the confession of judgment for the amount “unpaid thereon, whether due or to become due”; and such agreements were in harmony with the statutes. Secs. 2895, 2896, Stats. 1898; Reid v. Southworth, 71 Wis. 288. 2. The only defense upon the merits alleged in the proposed answer to the note upon which the smaller judgment was entered is “that no consideration whatever was received therefor.” That is the only allegation or statement contained in that answer in respect to such consideration. It is said by a standard text writer that: “As to the manner of stating want of consideration when necessary to plead it, the authorities are not harmonious. In some jurisdictions it will be sufficient to allege generally that the contract sued on was without consideration, while in others it is necessary to state the facts showing want of consideration. In pleading want of consideration the answer [255] ■should allege that no consideration .existed for the execution of the contract, and not that no consideration was received by the party pleading. ... In pleading failure of consideration it will not be sufficient to allege it in general terms. The facts showing wherein the failure of consideration consists must he alleged.” 4 Ency. of PI. & Pr. 947, 948, 950. Authorities are there cited in support of such statements. Here the equity powers of the court were invoked to set aside a judgment regularly entered. To set aside such a judgment, the verified answer should show a meritorious defense. Howey v. Clifford, 42 Wis. 561; Union L. Co. v. Chippewa Co. 47 Wis. 245; Milwaukee M. L. & B. Soc. v. Jagodzinski, 84 Wis. 35. In opposition to the motion the plaintiff presented the written contract containing the agreements made by the respective parties, and described the machinery for which the notes were given; and that the plaintiff had fully performed all the agreements and conditions on its part to he performed. ■Confessedly, a large portion of that machinery was accepted without any objection on the part of the defendants. As to the smaller judgment, we must hold that it was an abuse of discretion to set it aside. 3. What has been said applies, to some extent, to the larger judgment. The only warranties contained in the contract are to the effect that, if the engine is properly operated by competent persons, then it was warranted to furnish as much power and use as little fuel and water as any other make of thresher engine in the world, sizes, conditions, and manufacturers’ ratings of engines being equal or equalized. If the separator is properly operated by competent persons, then it was warranted to waste as little, thresh as fast and clean, as well as any other make of grain-threshing machine in the world, sizes and conditions being equal. Attachments were warranted to do as good work, as any other make, sizes and conditions being equal. All machinery was warranted to be [256] first class in materials, workmanship and finish. Accompanying such warranties were these: “ConditionsIf at the end of the first day’s nse the purchaser is unable to make said machinery operate well, then notice is to be given by registered letter to Port Huron Engine & Thresher Company, at Port Huron, Mich., stating particularly what parts and wherein it fails to fill the warranty, and time given to get to the machinery with skilled workmen, and put in order. The purchaser and his employees are to render.all necessary and friendly assistance, co-operating in making the machinery a practical success. If the purchaser then within three days notifies Port Huron Engine & Thresher Co., Port Huron, Michigan, by registered letter, that a competitive trial is required, and gives the company time in which to get representatives at the trial, and then procures an engine, or a separator, or a sheller which beats this one in a fair competitive trial, the said machine will be taken back, and payments will be refunded.” There is no allegation in the answer o'f the three defendants that any notice containing such required statement was given. The most that is alleged in that regard is that the defendants gave notice “of the condition of the engine, and demanded from the plaintiff a return of their notes.” Nor does it allege that time was “given to get to the machinery with skilled workmen, and put in order.” Nor does it allege that the defendants “within three days” notified the plaintiff that a- “competitive trial” was required, much less that it gave the plaintiff “time in which to get representatives at the trial,” as mentioned in the contract. We must hold that, so far as the answer undertakes to set up a meritorious defense based upon breaches of the written contract, it was a failure. 4. As indicated in the statement of facts, the order of the defendants for the fourteen-horse power engine was subject to the approval and acceptance of the plaintiff at its home office; and, as it was never approved, but was promptly rejected, because it had no such engine, the claim for damage for failure to send the same is without foundation. [257] 5. But we are constrained to bold tbat tbe portion of tbe answer of tbe three defendants quoted in tbe foregoing statement of facts does state a partial defense upon tbe merits. It is there alleged, in effect, tbat on or about August 1, 1900, tbe engine did not do good work upon a fair trial; tbat it did not furnish tbe horse power warranted, and did not work at all, but proved entirely worthless; tbat tbe defendants at once gave to'tbe plaintiff and its local agent a notice of tbe condition of tbe engine, and demanded a return of tbe notes; that, tbe plaintiff, by its agents, again agreed with tbe defendants' to put tbe engine in perfect order if tbe defendants would agree to give tbe engine another trial; and tbat it was then agreed between them tbat, if tbe engine was given another trial, and it did not do good work and give good satisfaction, tbe defendants need not keep tbe engine, but tbat tbe plaintiff would take tbe same back; that, in order to give tbe engine a fair trial, tbe defendants procured an expert engineer to operate tbe same; tbat tbe engine was not as guaranteed, and did not do good work, but, on tbe contrary, would not work at all; and tbat tbe engine could not be made to run and furnish any power whatever, even when operated by such expert engineer. Whether such agreement, if made, was oral or in writing, does not appear; but it is alleged to have been made after tbe making of tbe contract, and after tbe alleged failure of tbe engine to perform, as stated. Of course, it was competent for tbe plaintiff or its authorized agent to so modify tbe original contract. Whether it can be proved or not may be demonstrated upon a trial in court. We are constrained to bold that such new agreement, if made, constituted a partial defense to tbe two notes upon which tbe larger judgment was entered, and hence tbat tbe trial court did not abuse its discretion in setting aside tbat judgment. 6. Tbat judgment was set aside on motion of tbe defendants, and as a matter of favor to them. It was certainly error [258] to impose costs on tbe plaintiff in granting sucb motion. On tbe contrary, costs should have been imposed upon tbe defendants as a condition of granting tbe motion. While such relief is to be granted “in tbe discretion of the court,” yet it is to be “upon such terms as may be just.” Sec. 2832, Stats. 1898; Behl v. Schuette, 95 Wis. 441; Boutin v. Catlin, 101 Wis. 545, 550; Mills v. Conley, 110 Wis. 525. By the Gourt. — Tbe order of tbe circuit court is reversed, and tbe cause is remanded, with direction to enter an order denying tbe motion to set aside tbe smaller judgment, and to grant tbe motion to set aside tbe larger judgment on payment of $10 costs by tbe defendants to tbe plaintiff, except that sucb judgment be allowed to stand as security to the plaintiff herein; and tbe three defendants are to be allowed to serve and file their proposed answer.