This was an action of assumpsit, tried in the Superior Court of Cumberland County by the Judge without the intervention of a jury, subject to exceptions. The plaintiff’s declaration contains two counts; one upon assumpsit for the value of a piano, the other upon assumpsit for the sale and delivery of the same piano.
At the close of the plaintiff’s evidence, the Judge upon the testimony granted a nonsuit. To this ruling exceptions were taken and allowed. The case comes up on the evidence. The defense was that the piano which the plaintiff carried to the defendant’s house in the evening did not correspond either in make or quality with the piano which the defendant had agreed to purchase. The plaintiff’s own evidence shows conclusively that the defendant refused *575to accept the piano, and although he permitted it to remain in his house, compelled the piano to be locked, which was done by Charles Staples, one of the plaintiff’s agents. Whatever may be the plaintiff’s rights upon a contract of sale, it is evident from the testimony that the contract of sale, if one was made,, was not consummated by an acceptance by the plaintiff. Exceptions overruled.
B. A. Turner, for plaintiff. H. H. Gray, Benjamin Thompson and P. J. Laughlin, for defendant.