The undisputed evidence proves that the coal in controversy was delivered to, and accepted by, the defendant. Hence, the counterclaims for damages, all of which are predicated upon the theory that the coal was not so delivered and accepted, must necessarily fail, and it was not error to exclude them from the consideration of the jury.
Three issues of fact were made by the answer. These relate, 1. To the quantity of coal delivered ; 2. To the contract price therefor ; and 3. To the alleged warranty and breach thereof. All of these matters are pleaded as defenses to the action in whole or in part. The issues of quantity and contract price were fairly submitted to, and were determined by, the jury. But the other issue was not so submitted, and has not been determined. The testimony tends to show that the plaintiff warranted his coal to be of good quality, and that the coal which, he delivered to the defendant was of very poor quality. True, the answer alleges that this warranty was accompanied with the representation or statement that the coal was as good as that being delivered at Havens’ mills, and it appears that there were no Havens’ mills in Milwaukee to which the representation could be referred, and hence that the quality of the coal delivered to the defendant could not be tested by comparing it with the coal at those mills. Yet we think those facts do not destroy the warranty, but that it is, nevertheless, a warranty of good quality, a breach of which will operate to reduce the damages which the plaintiff would otherwise be entitled to recover. Eor illustration, suppose a person who is negotiating the sale of a horse, says, “ I warrant this horse to be perfectly sound. I warrant him to be as sound as any horse owned by *2690. D.”, and one purchases relying upon the warranty. It turns out that G. D. has no horse. Gan it be doubted that this is a warranty of soundness, for the breach of which the purchaser may recover damages ?
We think that it should have been submitted to the jury to find whether there was a warranty, and, if so, whether there had been a breach thereof. Finding a warranty and breach, the jury should have been directed to assess the damages resulting therefrom, and to deduct the same from the contract price of the coal, assessing the plaintiff’s damages at the sum remaining after making such deduction, and the interest on such sum. Because such issue was not submitted to the jury, there must be a new trial.
At the last term, a motion was submitted on behalf of the respondent ro strike out the printed abstract of the return of the clerk theretofore served, for alleged noncompliance with rules8 and 22 of this court; and numerous alleged errors and defects in such abstract were pointed out. The decision of the motion was postponed until the cause should be argued. In Lloyd v. Frank, 30 Wis., 158, we held that we would not entertain a motion by the respondent to dismiss an appeal for noncompliance with those rules, but that in such cases the court will exercise its discretion, and make such order as may be proper, of its own motion. We think the same rule should be applied here. The motion will therefore be dismissed, but without costs.
It should be added that although some part of the return is quite imperfectly abstracted, yet we see no evidence of bad faith in the preparation' of the abstract, and those portions of the record which we have found it necessary to examine for the purpose of determining the appeal, seem to be sufficiently set out in the printed ease.
By the Court. — Judgment reversed, and a new trial awarded.
Ryan, C. J., took no part in the decision of this cause.