Ross v. Faber
Ross v. Faber
Opinion of the Court
The indebtedness of Faber to Ross in the sum of $115.29 is not disputed, but it is conténded by Faber that he is entitled as a matter of iaw to recover on his counterclaim the sum of $150, against which the $115.29 is to be offset. This is because Faber’s testimony, that the value of the purchased truck with the admitted defect in the rear-axle .housing was $150 less than the agreed purchase price, is not directly controverted in the record. •
Sec. 121.69 (-7), Stats., provides that, where the buyer ■ retains the goods, and sets up breach of warranty by way of recoupment in diminution on extinction of-the purchase price,
Sec. 121.69, Stats., constitutes sec. 69 of the Uniform Sales Act. The measure of damages set forth in sub. (7) thereof has been held applicable to breach of a warranty given in the sale of a motor vehicle, where the warranty read similarly to the one before us on this appeal. Cannon v. Pulliam Motor Co. (1956), 230 S. C. 131, 94 S. E. (2d) 397, and Studebaker Corp. v. Nail (1950), 82 Ga. App. 779, 62 S. E. (2d) 198.
It was the position of the learned trial court that a jury issue was presented as to whether the dealer possessed the option to repair a minor defect instead of replacing the defective part with a new one. It was on this theory that question No. 4 was submitted in the special verdict. We cannot agree with such interpretation of the warranty.
It has been held that under an automobile warranty, which is similar in wording to the one now before us, the same is exclusive in nature in so far as precluding the purchaser from recovering on the theory of implied warranty. Wall v. Britton Stevens Motors Co. (1925), 251 Mass. 517, 146 N. E. 693, 43 A. L. R. 647; Kolodzcak v. Peerless Motor Co. (1931), 255 Mich. 47, 237 N. W. 41; and Runco v. Brockway Motor Co. (1949), 164 Pa. Super. 240, 63 Atl. (2d) 397. If such warranty is exclusive as to the rights of the purchaser, it would seem to follow that it is likewise exclusive as to the rights of the warrantor, which in the instant case is Ross, seller of the truck. Nowhere in such warranty is there any option given the warrantor to substitute the making of repairs in lieu of replacing the defective part. We reject any contention that such an option may be held to exist by implication.
It, therefore, necessarily follows that the submission of question No. 4 in the verdict, and the giving of that portion of the charge to the jury with respect to such question, constituted prejudicial error.
A purchaser, in the position of Faber, may waive his right under the warranty, to have a defective part replaced by a new one, by accepting a repair of such part in lieu of such replacement. The testimony of Ross, as to what was said and done by the parties at the time the pinholes in the rear-axle housing were repaired by means of the peening hammer, would support a finding of waiver on the part of Faber. However, Faber’s testimony in this respect negatives such a finding. Because of such conflict in the testimony a jury issue was presented on the issue of waiver. No question ip the special verdict was directed to this issue, and this prevents us from reversing and remanding with directions that judg
By the Court. — Judgment reversed, and cause remanded for a new trial not inconsistent with this opinion.
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