#### Lorenz, Respondent, vs. Hart-Parr Company, Appellant.

*April 11*—

May 2, *1911.*

*Sales: Breach of warranty: Notice: Sufficiency: Agency: Rescission:*

1. A letter to the vendor from the purchaser of a gasoline engine warranted to develop certain power, stating that he would need expert help in learning how to start the engine and get “the full power” out of it, and that he had had lots of trouble starting the engine with the belt on, is *held*to refer to the guaranteed power of the engine, and to be a compliance with the requirement of the contract of sale that notice he given “stating particularly wherein it fails to fulfil the warranty,” especially where the vendor acted on such notice and treated it as sufficient.

2. In view of a letter from the vendor, written after receipt of the notice above mentioned, stating that vendor’s traveling agent for Wisconsin, who had negotiated the sale, would inspect the engine, and a subsequent letter referring to the fact that such agent had helped to put the engine in running order, and in view of such agent’s direction that if there was further trouble the vendee^should notify him,' not the vendor, the vendee had. a right to assume that such agent was the proper person upon whom to call for further assistance, and the subsequent act of such agent, when so called upon, in sending an expert to put the engine in good order, was the act of the vendor and a recognition of the sufficiency of the notice already given and a waiver of any more specific notice.

3. Under all the circumstances in this case leading to the retention of an engine for a longer time than that specified in the contract of sale, during which time efforts were being made by the vendor to put the engine in running order, it is *held*that the purchaser did not thereby waive his right to rescind the sale for breach of the warranty.

Appeal from a judgment of tbe circuit court for Sheboy-gan county: Michael KiewaN, Circuit Judge.

*Affirmeck.*

This is an action brought by the plaintiff to recover the amount paid for a gasoline traction engine purchased from *262tbe defendant under a written contract containing the following warranty :

“It is warranted that it is well made and of good materials and workmanship.

“That if properly operated it-will develop the nominal rated capacity of power continuously and easily.

“That it will successfully operate a threshing outfit of a size and capacity usually operated successfully by an oi’di-nary steam traction engine, the actual brake horse power rating of which is the same.

“That for road purposes it will as successfully draw the threshing outfit used with this engine as an ordinary steam traction engine of like actual brake horse power rating will handle its load.

“That the oil-cooling device will keep the cylinders sufficiently cool for the successful operation of the engine under all conditions of weather.”

The complaint alleged that said engine did not comply with the terms of the warranty, in that it failed to develop the necessary horse power to successfully operate plaintiff’s separator; that it was impossible to operate said engine so as to develop the nominal rated capacity of seventeen horse power; and that the oil-cooling device did not keep the engine sufficiently cool for . successful operation. The complaint further alleged that after due notice by the plaintiff of said defective condition of the engine and opportunity on the part of the defendant to correct the same, said defendant was unable to remedy such defects, and thereupon plaintiff tendered the engine to the defendant and demanded the return of the purchase price thereof. The answer put in issue all the material allegations of the complaint. The jury returned the following special verdict:

“(1) When properly operated, was the gasoline engine which plaintiff bought of defendant capable of developing the nominal rated capacity of seventeen horse power, continuously and easily? *A.*No.

“(2) "When properly operated, was said gasoline engine *263capable of successfully operating a threshing outfit of a size and capacity usually operated successfully by an ordinary steam traction engine of the same actual brake horse power rating? A. No. , -

“(3) When properly operated, was the oil-cooling device on said gasoline engine capable of keeping the cylinders sufficiently cool for the successful operation of the engine under all conditions of weather? *A.*No.

“(4) Within six days from the. day when plaintiff first used said gasoline engine, did he give notice to defendant by letter, stating as particularly as he was then able to state-wherein the engine failed to fill the warranty thereof? *A.*Yes.

“(5) Did plaintiff give a reasonable time to defendant to send a competent person to remedy any defects, if such there were, in the engine? *A.*Yes.

“(6) Did defendant’s agent, R..P. Howard, and its expert, Albert Mader, and its representative, O. H. Parr, all fail in their efforts to make the engine fulfil the terms of the written warranty thereof? *A.*As to Howard, we answer yes. As to Mader, we answer yes. As to Parr, we answer yes.

*“(1)*Did plaintiff purchase the gasoline engine in reliance upon the truth of the 'written warranty thereof? *A.*Yes.”

On such verdict judgment was entered in favor of the plaintiff, from which judgment defendant appeals.

*Frcmcis*Williams, for the appellant.

*Simon*Gillen, for the respondent.

BabNes, J.

The appellant insists that the evidence does not support the first, second, third, and fourth findings of the jury, and that the court should have changed the answers of the jury in each instance, and that if the court did not see fit to do so it should have granted a new trial. We think there was ample evidence in the record to sustain the answers of the jury to the first, second, and third questions of the verdict. In fact the. preponderance of the evidence supports these findings. Whatever difficulty the case presents arises *264out of tbe contention that the answer to the fourth question has no support in the evidence.

The contract of sale contained the following provision:

> “If inside of six days from the day of its [the engine’s] first use it shall fail in any respect to fill this warranty, notice shall be given the *Hart-Parr Company*at their office at Charles City, Iowa, by registered letter or telegram, stating particularly wherein it fails to fill the warranty. . . . The use of said engine after the expiration of the time named in the above warranty shall be evidence of the fulfilment of the warranty, and full satisfaction to the undersigned, who agrees thereafter to make no further claim on the *Hart-Parr Company.*. . . Neither shall the fact of any local or traveling agent or expert of the company rendering assistance of any nature after the above warranty has been concluded, operate as an extension of the conditions thereof.”

The plaintiff did not have a copy or duplicate of this warranty until about September 1st. He used the machine in threshing some peas at his own farm on August 16th or 17th, and on August 19th he started to thresh at the farm of a neighbor and concluded his work there on the evening of the 20th. This apparently was the only work plaintiff was able to do until after the expiration of six days from the date on which the engine was first started. Manifestly, the actual time available to make a test of the engine was rather short. On August 22d the plaintiff wrote the defendant and in' his letter said:

> “I will need some expert help in learning to1 start the engine *and get the full power out of it.*I and Mr. II. Hine had lots of trouble in starting the engine when we stopped with the belt on. I want to start Thursday morning, want your man here by that time.”

This letter is indefinite, but it does inform the defendant that the services of an expert would be required to enable the plaintiff to get full power out of the engine. Eull power would obviously be understood to mean the amount or quantity of power guaranteed by the contract of sale. By the *265warranty tbe plaintiff was required to “state particularly” wherein the engine failed to comply with the warranty. The letter or notice was not as exact and precise as it would have been had a lawyer been employed to draw it. However, the plaintiff was not at this time preparing for a lawsuit, but was desirous of having the engine fixed up so that he could start it easily and get the guaranteed amount of power out of it. The defendant did not decline to act upon this letter because of the informal character of the complaint made. On August 23d it wrote the plaintiff: “We have just received word from our Mr. Howard that he would be there the middle of this week. We presume he is there and has gotten you straightened out by this time.” Howard was the traveling salesman of the defendant in Wisconsin and the person who negotiated the sale of the engine to the plaintiff. Howard, as a matter of fact, visited the plaintiff on August 22d, after plaintiff’s letter to the defendant had been sent to the postoffice for mailing, and did something in the way of putting the engine in running order. At this time Howard advised the plaintiff that if he had any further trouble with the engine he should notify him and not the defendant. On August 26th the defendant wrote the plaintiff: “We have heard from our Mr. HoAvard that he happened along about the time you wished a man and has helped you, giving such aid as you needed.” About August 27th the plaintiff telegraphed Howard to send an expert to ascertain how the trouble with the engine could be remedied. An expert was sent who remained Avith the engine for three days, but apparently failed to make it work satisfactorily, whereupon plaintiff returned the engine to Waldo and wrote the defendant what be had done and specified in detail wherein the engine failed to fulfil the warranty and demanded back his notes given in payment of the same. Erom this point on the correspondence is quite voluminous but not very material. The defendant, under date of September 2d, notified the plaintiff that the engine was his be*266cause of bis failure to give tbe notice required by tbe contract of sale witbin tbe prescribed time, and refused to recognize any right of rescission on tbe part of tbe plaintiff. Tbe plaintiff took a contrary position. About September 14th Howard and one Parr, tbe secretary of tbe defendant company and an expert machinist, went to see plaintiff. They insisted that tbe engine was plaintiff’s property, but that they desired to help him out by putting it in running order. Tbe plaintiff, while maintaining that tbe engine was not bis, consented to give it another trial and hauled it from Waldo to-tbe place whei’e be was threshing with bis old engine. Howard and Parr did not succeed in making tbe engine-work satisfactorily or in such a manner as to constitute a compliance with tbe contract. On October Itb the plaintiff again wrote tbe defendant that be would give it another chance to- make tbe engine work according to warranty, and requested defendant to send another expert. Tbe defendant declined to-take advantage of such offer. Tbe engine was again returned to Waldo before October 20th, and tbe defendant was notified of such return.

This does not appear to be a case where tbe plaintiff got sorry for having made tbe purchase and was looking for some-subterfuge whereby be co-uld avoid tbe contract. On tbe contrary, be seemed to be entirely willing to give tbe engine a fair trial, and to keep and use it if it could be made to do tbe work as guaranteed. Witbin tbe six-day period tbe defendant was notified that tbe services of an expert would be required to get tbe full power, which we think means tbe guaranteed power, out of tbe engine. Tbe letter, in effect, -stated that tbe engine was not furnishing tbe required power and also that it was very difficult to start it with tbe belt on. Tbe defendant acted on this notice and treated it as sufficient by writing tbe letters of August 23d and 26th. It is true, Howard’s first visit was not made at tbe instigation of tbe defendant after it bad received tbe letter of August 22d. But *267by writing tbat Howard was going to inspect tbe engine and also tbat be bad done so, these two letters clearly evince an intention on tbe part of tbe defendant to treat tbe notice as-sufficient. In view of tbe letters of August 23d and 26tb and of tbe statement made by Howard to tbe plaintiff, we think be bad a right to assume tbat Howard was tbe proper party on whom to call for assistance, and tbat tbe act of Howard in sending an expert on August 28th to put tbe engine in good order was in fact tbe act of tbe defendant and a recognition of tbe sufficiency of tbe notice already given and a waiver of any more specific notice than tbat given. Tbe decided cases fully support tbe conclusion reached: *Kingman & Co. v. Watson,*97 Wis. 596, 609, 73 N. W. 438; *Trapp v. New Birdsall Co.*109 Wis. 543, 556, 85 N. W. 418, and cases cited; *Hein v. Mildebrandt,*134 Wis. 582, 585, 115 N. W. 121; *Peterson v. Walter A. Wood M. & R. M. Co.*97 Iowa, 148, 66 N. W. 96; *Nichols & S. Co. v. Wiedemann,*72 Minn. 344, 346, 75 N. W. 208, 76 N. W. 41. We fail to find any sufficient evidence to warrant us in bolding tbat tbe plaintiff waived bis right to rescind by retaining tbe engine in bis possession as long as be did, considering tbe circumstances that, led to tbe retention.

*By the Court.*— Judgment affirmed.