J. I. Case Threshing Machine Co. v. Johnson

Dodge, J. The appellant contends against the judgment that defendant’s right to rely upon breach of warranty was by the express terms of the contract dependent upon return of the machine to the place where received, which confessedly never took place. But it is found and established without [537] dispute that the defendant, when finally convinced of the defective character of the machine, notified plaintiff of that fact and asked its pleasure as to the time of returning it, implying his readiness to make such return according to the terms of the contract. To this the company, through its general agent, declared its determination to insist on the sufficiency of the machine and to refuse to accept its return in any way. It is a rule of law thoroughly established by many decisions that the positive declaration by one party of a determination which would render a prescribed act by the other futile excuses a specified performance or tender of that act. Guetzkow v. Michigan Mut. L. Ins. Co. 105 Wis. 448, 451, 81 N. W. 652; Langnecker v. Trustees, 111 Wis. 279, 87 N. W. 293; Wuerfler v. Trustees, 116 Wis. 19, 92 N. W. 433; Swanke v. Herdeman, 138 Wis. 654, 120 N. W. 414. Clearly the declaration of plaintiff’s position that defendant had no right to surrender back the machine served to render any deposit thereof at the depot in Hartland futile and unreasonable and, we conclude, absolved him from the performance of that as a condition of his right to rescind for breach of warranty. It is further contended in this connection that the authority of the general agent to waive any of the terms of the contract is not shown and is contradicted by the writing itself, which declares that no person “has authority to waive, alter, or enlarge this contract or to make any new or substituted or different contract, representation, or warranty. Salesmen, mechanics, or experts are not authorized to bind the company by any act, contract, or statement.” There is some evidence of very general scope of the authority of the general agent in deciding and declaring the attitude of the company with reference to this machine and the plaintiff wholly refrained from offering any in contradiction of such authority. The court has found that the plaintiff company acted in this declaration made by its general agent, and we think such finding has support in the evidence offered by the defendant which the [538] plaintiff did not see fit to contradict. We therefore conclude-that defendant’s failure to actually transport the machine and leave it at Ilartland is not an obstacle to his defense in this-case. 2. It is further contended that defendant, after having finally decided that the machine was defective and did not satisfy the warranty, made use of it for his own benefit for parts of two days, and therefore is precluded from rescinding the contract for breach of warranty. Rules of law governing this subject were laid down, in the light of numerous citations, in Fox v. Wilkinson, 138 Wis. 337, 113 N. W. 669. The trial court evidently considered that the use made of the-machine by defendant, after plaintiff’s last effort to make it satisfy the warranty, was only by way of reasonable test, for he refused to find that it was an appropriation of the machine-to defendant’s own use and benefit consistent only with the attitude of ownership. The evidence, while perhaps ambiguous, preponderantly supports the former view. There is in-such conduct, therefore, no obstacle to defendant’s subsequent rescission of the contract of purchase. By the Gourt. — Judgment affirmed.