Valley Iron Works Manufacturing Co. v. Grand Rapids Flouring Mill Co.

Pinnet, J.

1. The contract of sale of the wheel in question was for a sale upon trial and acceptance, and not of a present sale with warranty. The main question in the case is whether the defendant accepted the wheel or not, after the stipulated trial or such as it chose to make, before the action was commenced; and this was wholly a question of fact for' the jury to determine under the evidence produced. The instructions of the circuit court were full and clear on this and all other material issues, and that court was satisfied with the findings of the jury. There was evidence sufficient to support the verdict, and the court cannot interfere to grant a new trial, under such circumstances, on the claim that the verdict is contrary to the evidence.

2. There was no error in admitting in evidence the notes given for the wheel, although in one of the letters in which one of them was inclosed the defendant reserved the question of the acceptance of the wheel for further consideration. These notes, and the fact of their renewal, and the letters in relation; to them, were competent evidence, with all the other evidence in the case bearing upon the question of acceptance. There is nothing in the case to show or suggest that they were given as accommodation paper or for any other consideration than the wheel and its fixtures. They were not admitted as binding obligations of the corporation defendant, for want of previous action or authority of its directors; and it is reasonable to •suppose that when the secretary and general manager ■signed them it was supposed that all the defects in the 'wheel, if any, would be removed, so that the defendant felt warranted in giving notes for the purchase price. Certainly these’'facts were proper for the consideration of the jury on the question of acceptance of the wheel under the order. It is to be borne in mind that nearly two years had elapsed from the time the wheel was received by the defendant until the commencement of this action. . The defendant had abundant time to make trial of the wheel. The period named in the order for that purpose was only ninety days. If it was not satisfied with the wheel, it was its duty to request the plaintiff to take it away. There is nothing to show that any such notice was ever given, and there is evidence from which the jury might properly find that it refused to let the wheel he taken out in the fall of 1888, when called on to settle for it. The evidence tends to show that the defendant was making an unreasonable use of its right to accept or reject the wheel. There is considerable evidence to show that the wheel was in compliance with the order, and the jury may have arrived at the conclusion that the alleged dissatisfaction of the defendant with it was whimsical and ill founded or simulated.

3. After this action had been commenced, in October, 1889, the defendant retained the wheel until April, 1891, when it sold it, with its mill, to other parties. This was proved without objection, but defendant’s counsel objected, at the argument before the jury, against the counsel for the plaintiff commenting on this evidence of sale as showing an acceptance of the wheel; but the court ruled that it could only be referred to, if it had any bearing, on the question whether or not there had been any acceptance of the wheel before the action was commenced. As thus limited, and in connection with the other facts in evidence, we think the proof was competent, and the comment of counsel for that purpose proper.

4. The evidence of the witness Nash as to the manner in which the wheel had operated after he and his partner purchased the mill was properly received. His testimony shows that all material conditions remained substantialfy as when they purchased the mill, so far as the operation of the wheel would be likely to be affected, and, this being the case, his testimony as to its operation was properly received.

5. The question of exclusion of the evidence offered under the defendant’s counterclaim to show what damages the defendant had suffered by reason of the premises, does not require notice or discussion, for the reason that the verdict of the jury shows that the counterclaim was not sustained, and the exclusion of evidence of damages under it did not operate to the prejudice of the defendant. There was no claim that any false or fraudulent representations were made as to the power, speed, or capacity of the wheel, and, as already observed, it was a case of a sale upon trial. “ The above wheel we agree to place within our flume, and test it ninety days; and if wheel proves satisfactory and gives the power and speed it is represented to give we agree to pay for said wheel,” etc. Here is no warranty. The representations made before the delivery of the wheel would not constitute a warranty, for the plain reason that the acceptance of the wheel is not to be, and was not, in reliance on them, but the defendant stipulates for a period of ninety days within which to test the truth of the representations. Barnes v. Burns, 81 Wis. 235, and cases there cited.

There were some other points raised at the trial, but none of them merit particular notice. We are unable to see that any error occurred to the prejudice of the defendant.

By the Court.&emdash; The judgment of the circuit court is affirmed.