Becker v. Beaver Manufacturing Co.

Maeshaxl, J. As indicated, there was conflicting evidence as to whether tbe machine was defective within tbe field covered by tbe warranty. It may well be, as suggested by tbe circuit court, that tbe probabilities, looking at tbe printed record alone, are rather more in favor of appellant than respondent; but that furnishes no sufficient warrant for an appeal to this court. After giving due weight to tbe findings of tbe trial court, manifest prejudicial error must affirmatively appear to warrant a reversal. Hence. tbe instances are very few where, upon such consideration as should be bestowed upon tbe matter, an appeal for a review in this [474] court of the result below as to the facts is advisable or even justifiable. Notwithstanding the very full review of the case by counsel for appellant, we are unable to discover anything which calls for a disturbance of the decision of the circuit court or requires any extended discussion here. The case is exceedingly simple. True, as appellant contends, the complaint was ample to permit proof of a rescission of the sale contract. Probably substantially all the evidence bearing on that question was produced and it was passed upon in the findings, though not in the opinion. The latter is of little consequence except as explanatory of the findings. It was an unnecessary effort. The findings which, in contemplation of the written law, were made by the trial judge, and in the opinion of the writer should always be so made in fact, must be taken as the judicial conclusion in the case both as to matters of fact and of law. Such findings cover all the questions raised by appellant and also unnecessary immaterial matters. If there be anything in the case which warrants special treatment, it is whether the court below came to the right conclusion as to the nature of the warranty. It will be observed that when the contract was made a warranty was mentioned, in general terms, 'and referred to defendant’s cata-logue for particulars. Later, appellant complained of the machine and, upon his threat to reject it unless a warranty in writing specifying particulars and covering the understanding had with the sales agent was furnished a writing was sent to him to satisfy such demand. The trial court was right in concluding that such writing,, under the circumstances, must be regarded as having been sent and received as explaining or to take the place of any previous warranty. The subsequent writings are consistent with and do not vary it in any way. Therefore it furnishes the test as to whether any ground existed for a rescission of the contract. Upon [475] that theory the trial court found, 'upon evidence somewhat conflicting, as before stated, that defendant performed all the conditions of its contract up to the time of the commencement of this action. The finding on the question of rescission is amply supported. By the Court. — The judgment is affirmed.