A number of exceptions were taken on the trial to the rulings of the court admitting or ■ excluding evidence. They will not be noticed, for the reason that we are satisfied that the charge of the court was calculated to prejudice the plaintiff, and that therefore there must be a new trial on that ground.
Among other things the learned circuit judge stated in substance to the jury, that from the bill of sale itself the law would imply a warranty that the lumber should be of a merchantable quality and of the kind set forth in the contract. But he observed that the supreme court had said upon these important questions there should be evidence taken to find out what the parties meant at the time of the sale, and that he left it to the jury to say what was the contract with reference .to this matter. In another part of the charge the circuit judge further stated or directed the jury, that if they should *582find from the evidence that the defendant did -warrant or guaranty the quantity to be 750 M. feet, and did warrant it to be of good, merchantable quality, free from culls, and should also find that there had been an honest measurement of the lumber, and it fell short, then the plaintiff was entitled to recover for the shortage; and that if the quality was not such as represented, the plaintiff was entitled to recover whatever would be a proper deduction for the lumber that was not merchantable; that, on the other hand, if the jury should find there was no such warranty. as to quality and as to amount, then the plaintiff could not recover for the shortage; and that it was a question for them to decide upon the evidence, whether there were any such representation as to the quality and quantity, and whether there had been any failure in the quantity or quality.
The natural effect of this charge was, that the defendant was not answerable unless he expressly warranted the lumber to be merchantable. It will be seen that the court submitted the question whether there were any representations made by the defendant in regard to the quality of the lumber, and directed the jury that if they should find that such representations were made, then the plaintiff would be entitled to recover whatever would be a proper reduction for lumber which was not merchantable. It is obvious that under this charge the jury might have found for the defendant on the ground that he made no representations as to quality when he sold the lumber. Indeed, the charge is only susceptible of the construction that, in order to recover for a defect in quality, it was essential for the plaintiff to show that the defendant expressly warranted the lumber to be of a merchantable quality. The liability of the defendant is clearly placed upon that ground.
The circuit court seems to have misapprehended tire effect of the decisions of this court heretofore made in the cause. When the case was first here, as reported in 24 Wis., 640, this *583conn held that as the hill of sale contained an express warranty of title and against incumbrances, with no warranty that 'the lumber was merchantable, the presumption was that the writing expressed the whole contract'as to express warranties; and that the plaintiff could not show that the vendor at the time of sale represented the lumber to be merchantable, without a violation of the salutary rule against varying and adding to written contracts by parol evidence. But this court likewise held that, inasmuch as the testimony tended to show that the lumber, when the bill of sale was executed, was in rafts in the Mississippi river at Quincy, Ill., where it could not be inspected by the vendee, if the sale was made under such circumstances, there was an vmqMed warranty that the lumber was merchantable. "When the case was here on the second appeal (29 Wis., 592), Mr. Justice Lyóet properly remarked, in the opinion then given, that this .proposition was res adjudicate/, in the cause, and was no longer open for controversy. It seems unnecessary to remark upon the distinction between a warranty of quality which the -law implies in case of a sale of lumber situated beyond the reach of the vendee’s examination and inspection, and an express warranty of quality made by the vendor. The two things are confounded in the charge, or rather the court ruled that' the defendant was not liable unless the jury found that he made representations as to quality which would amotmt to an express warranty. And consequently there was manifest error in the court’s holding, as it did hold, that if the lumber, when the bill of sale was executed, was in the water where it could not be inspected, it was a question for the jury to determine from the evidence, whether there was a warranty of quality.
Nor is it any answer to say that the error became immaterial because it appeared that the plaintiff, knowing what the lumber was, both as to its quality and quantity, toolc it by agreement as it was, in full satisfaction of the previous contract. It would be improper for us to express an opinion as *584to tbe effect of tbe evidence upon that question; and we shall refrain from doing so, except to remark tbat it is very far from being of so satisfactory a character as to render tbe error in tbe charge, which we have been commenting on, immaterial or harmless. True, in immediate connection the court told the jury that if they were satisfied from the evidence that the plaintiff had ample opportunity to see the lumber before it was rafted, and knew its quality, had examined it and was able to judge as to quantity and quality, they might find that he purchased the lumber knowing what it was. Assuming, as we may for the argument, but not deciding the point, that there was evidence sufficient to carry that question to the jury, still it is imposssble to tell whether the jury found for the defendant upon that issue or because there was no express warranty of quality established by the evidence.
In regard to the claim for shortage, but an observation need be made. On the second appeal, this court held the contract ambiguous as to quantity. It was there said, whether the bill of sale called for 750 M. feet of lumber absolutely, or whether it was agreed between the parties that the rafts should be delivered and accepted for whatever lumber they contained — no specified quantity being fixed or contracted for,— were questions for the jury to determine from all the facts and circumstances. If the contract was for the sale and delivery of 750 M. feet, and the defendant failed to deliver the entire quantity, he would be bound to make good the shortage.
In this case the exceptions to the charge of .the court are incorporated in the bill of exceptions, which bears date March 9, 1875; but the exceptions do not appear to have been filed until March 22d, after a motion for a new trial, made upon the minutes of the judge, had been overruled. The counsel for the defendant insists that the exceptions must be disregarded, because too late. Sec. 2, ch. 194, Laws of 1874, provides that in actions thereafter tried, either party may, at any time before the close of the term of coixrt at which the action *585is tried, except to any part of tire judge’s charge to the jury, and such exceptions may be incorporated into the hill of exceptions and reviewed, the same as if made before the jury retires. There is no pretense that the exceptions in the present case were not filed before the close of the term, and it is stated in the bill of exceptions that at the time of the argument of the motion for a new trial, the reporter’s minutes of the charge had not been written out, and no copy was in the possession of the attorney of the plaintiff. But the exceptions were filed in time to enable this court to review them. This is surely so if any effect is given to the above provision. The practice there sanctioned may be most pernicious, as we are inclined to think it is; but it is impossible to say it was beyond the power of the legislature to authorize it.
By the Court.- — The judgment of the circuit court' is reversed, and a new trial ordered.