Northwestern Port Huron Co. v. Krubsack, 143 Wis. 527. under a warranty as to material, workmanship, and efficiency; that the machine did not comply with the contract of warranty; that the purchaser duly rescinded the same; and that the consideration for the note in suit had wholly failed. The defendant Labs also counterclaimed for damages for freight paid and money expended in endeavoring to get the machine to work, and for loss of profits. The jury returned a special verdict in the case, upon which judgment was entered for the plaintiff. The other material facts will be found in the opinion. For the appellants there was a brief by Agnew & Evans, and oral argument by N. W. Evans. John A. Kelly, for the respondent. BARNES, J. The special verdict in this case contained twenty questions, but one of which was answered in favor of the plaintiff. The unusual thing happened, however, in that plaintiff was awarded judgment on the verdict. By the answer to this question it was found that the defendant Labs did not send a notice to plaintiff by registered mail demanding a competitive trial between the machine purchased and some other machine which he might select. The appellants contend (1) that the evidence is insufficient to support this finding of the jury, and (2) that in any event they are entitled to judgment on the verdict. 1. In reference to the first contention, it may be said that Mr. Labs testified positively that he mailed the notice and that the evidence to the contrary is rather weak. But no copy of the letter was produced. The registry receipt received when the notice was mailed was not produced, and neither was the return receipt or the record at the postoffice in reference to the registered letter. In addition to this, an employee in the mailing department of the plaintiff testified that no such notice was received. This court cannot say that Northwestern Port Huron Co. v. Krubsack, 143 Wis. 527. the jury was not warranted in finding as a fact from this evidence that Labs did not mail the notice. 2. The corn shredder was sold under a warranty that it would "shell as little and husk as fast, doing the work well, and properly shredding the stalks, as any husker-shredder in the world." The machinery was also warranted to be first class in materials, workmanship, and finish. The contract then provided that if at the end of the first day's use the purchaser was unable to operate the machine well, immediate notice was to be given by registered letter to the plaintiff, stating wherein the machine failed to fulfil the warranty. The plaintiff on its part agreed, on receipt of such notice, to send an expert to put the machine in first-class running order. If the purchaser was not satisfied with such machinery after it was put in order by the skilled workman sent for that purpose, then, in order to obtain the benefit of the warranties, the purchaser was obliged within three days thereafter to notify the plaintiff by registered mail that he was not satisfied with the machine and that he demanded a competitive trial. If on such trial the machine failed to comply with the warranty, the plaintiff agreed that the contract should be rescinded and the machine taken back and the purchase price refunded to the purchaser. The contract of warranty also contained the following clause: "All of the warranties except as to free repairs shall be considered as fully satisfied unless the purchaser promptly gives the registered notices herein required, and it is expressly agreed that six days' retention from the first day's use of said machinery shall be conclusive evidence of the fulfilment of these warranties," etc. The machine did not work to the satisfaction of the purchaser and the plaintiff was notified to that effect. The agent who sold the machine first attempted to put it in satisfactory running order, and thereafter an expert came from the factory for the same purpose and concluded his work on VOL. 143-34 Northwestern Port Huron Co. v. Krubsack, 143 Wis. 527. November 26th. Mr. Labs testified that on November 28th he sent the notice referred to by registered mail. The finding of the jury makes it a verity in the case that the notice demanding a competitive trial was not sent. But it is argued that it was unnecessary to give this notice in writing because it was given orally to plaintiff's expert; because the machine was not in fact put in order as contemplated by the warranty; because the plaintiff's agent on November 26th agreed to send certain repairs for the machine; and because the testimony showed that the machine was practically worthless. These claims are not entirely consistent with each other. The testimony shows, without contradiction, that the machine was run the greater part of November 26th under the direction of the expert. The parties do not disagree as to what transpired at the close of the day. Labs claimed that the machine did not fulfil the warranty and that he was not satisfied with it. The company's expert, on the contrary, claimed that the machine was all right and that it belonged to the defendant. The defendant testified that he told the agent of the plaintiff that if this was his position he would rig up an old shredder which he had and ask for a competitive trial. The evidence clearly shows a situation where one of the parties claimed that the warranty was complied with and the other claimed that it was not. The precise situation was presented which the warranty contemplated. If the purchaser was dissatisfied with the work which the machine did, his contract required him to give a notice within three days demanding a competitive test. In the event of his failure to give such notice he became remediless under the terms of his contract. The evidence fails to disclose that the plaintiff admitted that the machine was not in condition to enter into a competitive trial or that the extra pieces which were to be sent were at all necessary in order that such trial should be made. The evidence is very vague as to the character of the pieces of machinery that were to be Boyd v. Gore, 143 Wis. 531. sent, but leaves the impression that they were merely extra parts to be used in case of breakdowns. The contract of warranty here involved is one that looks reasonable enough on its face, but is one under which it is very difficult for a purchaser to protect himself in the event of his being supplied with a worthless machine. However, courts cannot make contracts for parties, and where contracts, such as the one under consideration, are plain and unambiguous, it is the duty of the courts to enforce them. It seems clear that it was incumbent upon the defendant Labs, if he desired to protect himself, to give the notice by registered mail called for by the contract. That contract specifically provided that no verbal notice given to any agent or representative of the company should conclude it or should take the place of or be a substitute for the written notice called for by it. Neither of the points relied on for reversal of the judgment is well taken. By the Court.-Judgment affirmed. BOYD and another, Respondents, vs. GORE, Executor, Appellant. October 7-October 25, 1910. Evidence: Transactions with persons since deceased: Depositions taken before death: Landlord and tenant: Eviction: Voluntary surrender: Counterclaim. 1. Testimony as to personal transactions with a person since deceased, inadmissible under sec. 4069, Stats. (1898), is not rendered admissible by the fact that it was taken by deposition before the death of such person. 2. Where the landlord had objected to a tenant remaining on a farm, because the latter got into debt, and had told the tenant that he would better leave because he could not carry on the place, acquiescence and removal by the tenant and acceptance and resumption of possession by the landlord do not show an eviction, but a voluntary surrender. Boyd v. Gore, 143 Wis. 531. 3. Where a voluntary surrender of leased premises is accepted by the landlord, all liabilities under the lease which would arise in the future had no surrender taken place are terminated, but liabilities which have already accrued remain unaffected. 4. In an action by the assignees of a claim, a counterclaim against their assignor upon which they are not personally liable can be allowed only so far as it offsets the claim sued upon. APPEAL from a judgment of the circuit court for Dodge county: MARTIN L. LUECK, Circuit Judge. Reversed. This is an action to recover certain sums which the plaintiffs claim as assignees of one Coller. The defendant by counterclaim seeks to offset against the plaintiffs' claims certain demands which he claims existed in his favor against Coller at the time the assignment was made. The action was tried by the court, trial by jury having been waived. It appeared that October 1, 1906, William Gore, the defendant's testator, leased by a written agreement his farm of 160 acres. to one Coller, the plaintiffs' assignor, for one year upon shares; that the lease was modified in certain particulars immaterial here in June, 1907, and when it expired, October 1, 1907, was renewed for the year; that in March, 1908, Coller for some reason vacated the premises and Gore took possession and placed a new tenant therein. Coller claimed that when he quit possession of the premises the defendant owed him, among other items, the following: For plowing done in the fall of 1907...... $85 50 For cash received by Gore for milk belonging to Coller...... 80 00 6 00 $171 50 Total Immediately after quitting the premises Coller sold his demand for these sums with others to the plaintiffs, and thereupon they brought this action against Gore on the 29th of April, 1908. Gore died September 20, 1908, and on the 28th of November following, upon proper motion, the action was revived against the present defendant as executor of |