03-0640 Steele v. Pacesetter Motor Cars, Inc.

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Accordingly, the trial court erred in ruling that plaintiff could not recover the amounts he paid for subsequent repair services.

“Under the undisputed facts of this case, Steele and Pacesetter entered into an agreement to rebuild the engine ‘to ensure … many trouble free miles.’ When the engine failed to perform, Steele could have chosen to return to Pacesetter, but he was not required to do so. To preserve a potential claim and ultimately recover damages, a consumer, in the absence of a contractual requirement to do so, need not keep carrying the bucket to the well after reasonably concluding that the well is dry.”

And, even though the company to which defendant sent the engine for certain repairs may have caused some damage, that delegation of performance did not discharge defendant’s responsibility for performing the contract.

“Clearly, therefore, Steele could sue Pacesetter and Pacesetter would remain liable for Allis Machine’s ‘mistreatment’ of the engine.”

Reversed and remanded with directions.

Recommended for publication in the official reports.

Dist I, Milwaukee County, Kremers, J., Schudson, J.

Attorneys:

For Appellant: Debra A. Slater, Milwaukee

For Respondent: Thomas E. Brown, Milwaukee; Kathryn A. Keppel, Milwaukee