By the Court,
Dixon, C. J.Tbe record discloses but two exceptions on tbe part of tbe appellant — one to tbe refusal of tbe court to instruct tbe jury, as requested by bim, that tbe respondent could not recover a judgment against bim for any sum of money whatever, but, under tbe pleadings and evidence in tbe cause, could only recoup a part or tbe whole of tbe appellant’s demand, provided tbe jury should find that tbe respondent bad a right to recoup anything whatever; and tbe other to tbe decision of tbe court overruling tbe appellant’s motion for a new trial. No bill of exceptions having been settled and signed as required by law, tbe judgment was affirmed at tbe January term, 1860. 11 Wis., 187. Judgment of affirmance has since been vacated, and tbe defect cured by a stipulation of tbe parties, and tbe cause is now to be determined as if tbe exceptions bad at first been regularly made a part of tbe record.
Tbe argument bere embraces several questions which were not raised on tbe trial below, and most of them are, on that account, not now open to consideration. Hpon whom was tbe burden of showing a breach of tbe alleged warranty ? What was tbe measure of proof required to establish it ? Did tbe warranty constitute a part of tbe contract for tbe sale of tbe trees, or was it made afterwards; and if so, upon a sufficient consideration ? What were tbe terms of tbe contract, and when was it made ? Did it fix tbe time for tbe delivery of tbe trees, and was tbe appellant in that respect *262in default? If he was, did the respondent relinquish bis claim by an unconditional acceptance of them? Were the statements of the appellant mere expressions of opinion or of expectation on his part, or were they intended and received as a warranty ? All these were questions of this nature, and proper to have been presented and discussed before the court and jury at the hearing; and the appellant, by his failure to do so, effectually waived them, so that he could not afterwards make or avail himself of them, either upon the motion for a new trial or on appeal to this court, except as they might affect the question whether there was any evidence to uphold the verdict. For that purpose they may be incidentally reviewed both upon that motion and in this court, but for no other. The practice of the courts in this respect is well settled, and the established rule is, that a party who neglects to make his objections at the time appointed by law for that purpose, will not afterwards be permitted to return to them. Bogert vs. Phelps, ante, p. 88; Bonner vs. Insurance Co., 13 Wis., 677. The rule is especially applicable to this case. The contract was oral, and it was the province of the jury, under proper instructions from the court, not only to determine its terms, and whether it had been duly observed by the appellant, but also, upon considering all the circumstances attending the transaction, to decide upon the existence of the ingredients necessary to constitute a warranty. Osgood vs. Lewis, 2 Har. & Gill, 495. So far was the appellant from raising any of these questions at the trial, either by way of objecting to the evidence or of asking instructions to the jury, that on the other hand, by the instructions which he did ask and which were given by the court, he assumed them to have been conclusively established against him. The instructions were, that before the respondent could recover anything against the appellant’s demand, the jury must find that the-trees were buried in strict accordance with the appellant’s directions, and were set out in the spring as directed by him, and that the respondent must show affirmatively that he had thus strictly complied with the instructions, unless the jury believed from the evidence that the trees were dead, and that planting *263would, have been useless. Tbe appellant tbns rested bis case entirely upon tbe question of performance on tbe of tbe respondent, and whether tbe trees were dead so that planting would be useless, and baying taken that position he must thenceforth abide by it. Tbe questions, therefore, before tbe circuit court upon tbe motion for a new trial, and before us upon this appeal, are, whether tbe verdict should stand upon tbe evidence introduced, and whether tbe judge erred in refusing to instruct tbe jury that tbe respondent could not, under the pleadings and evidence, recover a judgment over against tbe appellant. To these may also be added, whether tbe answer contains a defense or counterclaim, an objection which though not made in this precise form, is nevertheless involved in some of tbe propositions urged by counsel. Such objections are not waived by trial and verdict, but may be taken at any stage of the action. Yan Santvoord’s Pleadings, 725-6, and cases there cited. The evidence follows the allegations of the answer so closely, that if it be conceded that the latter sets up a good defense or counter-claim, there seems to be no ground for saying that it is not sustained by proof, and therefore the verdict should stand. Considered as a question of evidence given under a good answer, there can be no doubt that the verdict is well supported; for if the respondent is to be believed, which was a matter for the jury, almost every averment of the answer was literally proved. Hence the objections, that the warranty was made after the contract of sale, and was void for want of' a sufficient consideration, and that the things warranted were not in law the proper subjects of warranty, run at once into objections to the answer itself; and though they are urged as questions of evidence, and perhaps not improperly so, yet it. seems more appropriate to treat them as matters of pleading. These two objections, and that arising upon the exception taken at the trial, may still be made. The others were waived.
It is a general rule that a warranty must be made at the time of the sale and be one of the terms of the contract, and that if it is made after the sale is complete, or the contract performed, it will not be binding, for want of a consider-*264a^on' Shitty on Con., 397. But tbis is true only when is no other consideration than the sale to support it jp ma(je afterward upon a new consideration, or one distinct from that of the sale itself, it is valid and obligatory. Comyn on Con., 146. The answer avers that the appellant agreed to deliver the trees early in the fall of 1857, so that the respondent could transport and deliver them at certain places in the state of Minnesota, before cold weather or frost should come to injure them; that he failed to do this, but delivered them too late for that purpose, and the respondent, deeming it unsafe to attempt their transportation, objected to receiving them on that account; that thereupon the appellant warranted that there was ample time for the removal of the trees before the appearance of cold weather or frost sufficient to injure them, and that, if they should be frozen, they would come out uninjured in the spring, provided the respondent buried them in the manner directed by the appellant ; and that the respondent, relying upon such warranty, consented to take them, and hastened to transport them to Minnesota, &c. Here there was a new and sufficient consideration for the warranty, to wit, the consent of the respondent to accept the trees after the appellant, by his neglect to perform, had exonerated him from all obligation to do so.
As to the second objection, it is urged that the words spoken cannot be held to have been a warranty; that a warranty must relate to the quality, condition or properties of the thing sold at the time of sale; and that it cannot be prospective in its operation. That part of the warranty which concerned the power or capacity of the trees to withstand the action of frost, or to come out of the ground unharmed in the spring if properly buried during the winter, seems not liable to this objection. It clearly had reference to the quality or properties of the trees under certain circumstances which both buyer and seller supposed not unlikely to happen, and was good according to the position of counsel. In regard to prospective warranties, Sir William BlackstoNE (3 Com., 166) says: “ Also the warranty can only reach to things in being at the time of the warranty *265made, and not to things in futuro ; as, that a borse is sound at tbe buying of him, not that he will be sound two hence.” This doctrine, however,, has been very generally doubted. Mr. Christian, in a note to the passage, says: “ There seems to be no reaso.n or principle why, upon a sufficient consideration, an express warranty that a horse should continue sound for two years, should not be valid.” Lord Mansfield, in Eden vs. Parkinson (Doug., 733), where the language of Blaekstone was cited, declared, " there is no doubt but you may warrant a future event.” Mr. Chittv disapproves the doctrine, and in reference to the same passage (Chitty on Con., 397), observes: “ There seems however to be no valid reason for holding that a party may not, upon good consideration, impose upon himself this prospective responsibility.” For ourselves we can see no reason or principle which should have prevented the appellant, if he chose, from taking upon himself the risks and dangers resulting from the late transportation of the trees; and why, if he did so, he should not be held responsible for damages arising from the unfavorable state of the weather. This was the substance of his undertaking, upon which, the respondent alleges and testifies, he was. induced to complete the contract; and, considering the character of the transaction, we cannot perceive why it -should not be upheld. It was for the jury to decide whether it was intended as a warranty or as a mere prediction or expression of opinion; and upon evidence and under instructions to which the appellant took no exception, they have found that it was the former. With that conclusion we cannot interfere.
The instruction asked, so. far as it was founded on the evidence, was properly refused. The evidence was for the consideration of the jury, not the court. As a question of pleading, we decided in Benedict vs. Horner, 13 Wis., 256, that the statute does not require the defendant' to make a formal demand for judgment in his answer. It is sufficient if he states facts showing that he is entitled to it.
Judgment affirmed.