Berry v. Wadhams Oil Co.

Winsnow, C. J. In this case it is held: 1. The contracts of sale being in writing and not showing that the sales were made by sample, evidence that such was the fact is not admissible to affect the contracts in any way. Wiener v. Whipple, 53 Wis. 298, 10 N. W. 433. 2. This being an executory sale of goods at a distance, not open to the inspection of the vendee and there being no express warranty of quality, there was an implied warranty that the goods were merchantable in quality, and hence evidence that the gasoline tendered was unmerchantable on account of its obnoxious odor was admissible and should not have been stricken out. Merriam v. Field, 24 Wis. 640; [591] T. B. Scott L. Co. v. Hafner-Lothman Mfg. Co. 91 Wis. 667, 65 N. W. 513. 3. The word “gasoline” being generic and in a sense indefinite because it covers a number of tbe lighter products of petroleum differing in tbeir characteristics, it was competent for the defendant to introduce evidence tending to show that the expression “74-degree gasoline,” as used in the trade, meant a product with certain qualities as to color and smell. This evidence does not tend to vary the contracts, but to translate them from the language of trade into the language of people generally. Burstein v. Phillips, 154 Wis. 591, 143 N. W. 679. 4. The contracts being executory, if they were repudiated by the defendant without just cause, the plaintiffs might properly treat them as terminated and sell the property for cash for the purpose of liquidating the damages. Woodman v. Blue Grass L. Co. 125 Wis. 489, 103 N. W. 236, 104 N. W. 920; Pratt v. S. Freeman & Sons Mfg. Co. 115 Wis. 648, 92 N. W. 368. By the Court. — Judgment reversed, and action remanded for a new trial.