Harrison, Judd & Co. vs. Crocker.

fevre, 57 Barb., 313. 3. That the evidence was not such as to warrant the finding of the jury.

John Frazer and Bundy & Manwaring, for respondent: 1. After an executed sale of the machine to him with express warranty, the subsequent giving of notes by defendant. for the price was not necessarily a waiver of the terms of the warranty. The property vested in him from the delivery; and he could retain it and sue on his warranty without notice. Getty v. Rountree, 2 Pin., 379. In fact this was his only remedy. Sedgw. on Dam., 287. The giving of the notes. could therefore make no difference in the rights of the parties (Chitty on Con., 407, note 1); though it might be some evidence that the terms of the warranty were complied with, and sufficient to call for explanation on defendant's part. In this case the reason why the notes were given are fully explained. 2. Ordinary care and diligence are always presumed, until the contrary appears. Men are presumed to act for their own interest, and to use ordinary care and diligence in prosecuting their business. Shearm. & Redf. on Neg., §§ 43, 44, and cases there cited. M. & C. R R. Co. v. Hunter, 11 Wis., 160.

COLE, J. One of the errors relied on for a reversal of the order was the refusal of the court to give the two instructions asked on the part of the plaintiffs. These requests seem to have been asked as one charge; or, at all events, there is only one exception to the refusal of the court to give them. This exception will not enable this court to review the correctness of any single instruction. The only question arising on the exception is, whether both requests, when considered as an entire charge or instruction, were correct as a proposition of law. Strachan v. Muxlow, 31 Wis., 207, and cases cited. The second instruction asked, as it seems to us, is clearly incorrect. The giving of the notes, under the circumstances disclosed in the evidence, without claiming a deduction from the contract price of the machine for the alleged

Harrison, Judd & Co. vs. Crocker.

breach of warranty, did not per se amount to a waiver of the warranty. The execution of the notes some time after the purchase of the machine, and after the defendant had had an opportunity to try it, might be a circumstance tending to show that the defendant was satisfied with the machine; though even for that purpose it would be entitled to but little weight or importance.

At the request of the defendant, the court charged that if the plaintiff's rely upon any carelessness or unskillfulness on his part in managing the machine, they must prove it, the presumption being that the machine was operated with ordinary care and skill; and, unless the contrary was shown, the jury must assume such to be the fact. This charge was excepted to by the plaintiffs. Also in the general charge the court instructed the jury, that, as to the mode of operating the machine, the law required that ordinary care and skill should be used in testing its merits in order to ascertain if it was such a machine as promised; and that, in the absence of testimony to the contrary, the presumption would be that ordinary care and skill were used in the operation of the machine. This charge was likewise excepted to by the plaintiffs.

What would be the true rule in regard to the burden of proof where no evidence whatever was given as to the manner of operating the machine, is a question we need not determine. It will be seen that the court held that in such a case the presumption would be that the machine was operated with ordinary care and skill, and that it was incumbent upon the plaintiffs to show that it was not so used. The warranty that the machine would do good work was doubtless upon the condition that reasonable skill and care would be used in operating it; and this must be assumed to be the understanding of the parties to the contract. The defendant on the trial attempted to show, as a part of his case, that the machine did. not answer the warranty, and did not do good work, although

Harrison, Judd & Co. vs. Crocker.

reasonable skill and care were exercised in operating it. This evidence was controverted on the part of the plaintiffs, who attempted to prove that the defendant did not use ordinary skill in operating the machine. In this state of the evidence, there was no ground for a presumption either way, but the question should have been submitted to the jury to determine how the fact was. It was plainly a question of conflicting evidence. What presumption would arise in the absence of all evidence upon the question, was a matter not involved in the cause; and stating what the presumption would be in such case was well calculated to mislead the jury. The question should have been submitted upon the conflicting evidence given, for the jury to determine whether the machine was used with ordinary care and skill or not. There was certainly evidence to carry the case to the jury upon that point.

We will add the remark that we express no opinion as to which party was bound to show that the machine was skillfully or unskillfully operated. That question is not here, and we therefore do not feel called upon to consider it. But the instructions given on that point were well calculated to prejudice the plaintiffs, and for that reason a new trial is ordered.

The counsel for the defendant calls our attention to some discrepancies between the printed case and the original bill of exceptions. And in the printed case there are references to the original bill of exceptions. I have read the manuscript bill, and find some defects in the printed case. The rule requires the printed case to contain everything material and necessary for a proper understanding of the case and the points to be decided. It is expected that the bar will comply with the rule; otherwise it will be enforced against them.

By the Court.-The order of the circuit court denying the motion for a new trial is reversed, and the cause is remanded for further proceedings in accordance with this opinion.

Oleson vs. Flom.

OLESON VS. FLOM.

Reversal of Judgment.

1. Where the complaint states a cause of action, and there was evidence tending to prove its material averments, the verdict will not be disturbed by this court, although there was a preponderance of evidence against it. 2. A judgment will not be reversed for inaccuracies in the instructions given, by which the appellant could not have been injured.

APPEAL from the Circuit Court for Dane County.

Action to recover damages for personal injuries. The complaint alleges that the plaintiff was a guest at defendant's hotel in Madison, and that while such guest, and on a day specified, "the said defendant, without any cause or provocation, unlawfully, rudely and violently seized hold of the person of this plaintiff, and then and there, with great force and violence, threw this plaintiff on the floor in a public bar room in said house, whereby and by which means this plaintiff's right leg was broken between the knee and ankle; and that said injury was caused as aforesaid without any fault or negligence on the part of this plaintiff."

In addition to the general denial, the answer contains the following defense: "That the injury of the plaintiff aforesaid was caused wholly by his own fault, and by his producing and bringing about a scuffle, in which, by accident, and without design or fault on the part of anybody but the plaintiff, he suffered the injury complained of."

On the trial, no instructions to the jury were asked on behalf of the defendant; but at plaintiff's request the jury were instructed, that if they were satisfied from the evidence that the plaintiff, upon the occasion of the alleged injury, did challenge persons to wrestle with him, nevertheless, if they were also satisfied that such challenge or offer to wrestle was unknown to the defendant, the fact of such challenge having been made was no excuse to the defendant in this action, if

Oleson vs. Flom.

the jury were also satisfied that the defendant "threw the plaintiff to the floor as charged in the complaint, and in so doing caused the breaking of his leg in manner and form and in the way as charged in the complaint;" and, that if they found the plaintiff was so injured, he was entitled to re

cover.

The judge then proceeded to state to the jury the positions of the respective parties, and stated that of the defendant as follows: "Upon the other hand it is claimed upon the part of the defendant, that the plaintiff took hold of him, requesting him to wrestle, and that they did so by mutual consent, if not expressed in words, by joining in and engaging in an entirely friendly manner; and that, while so engaged, and with no more force or unfairness on his part than usually attends such contests and exhibitions of strength, the plaintiff accidentally received the injury complained of, without fault on the defendant's part, or at least with no more fault upon his part contributing to the injury than there was upon the part of the plaintiff; in other words, that if there was anybody to blame, the plaintiff was as much at fault as he was."

No specific exception was taken to any portion of the charge, except those above quoted. Verdict for the plaintiff; a new trial denied, and judgment entered pursuant to the verdict; and the defendant appealed.

Wm. F. Vilas, for the appellant.

Wm. Welch, for the respondent.

LYON, J. 1. It is claimed on behalf of the defendant, that there is no evidence to support the verdict. This claim is not sustained by the record; for the bill of exceptions contains testimony tending to show that, although the plaintiff had challenged others to wrestle with him immediately before he was injured, he did not so challenge the defendant, and that the defendant seized and suddenly threw him, and thus caused the injuries complained of. In other words, the testimony