By the Court.
McDonald, J.delivering the opinion.
This is an action on a single bill, dated 30th November, 1852, payable by the 25th December, 1853; suit brought 31st December, 1S55. It was given for a gin, delivered under a contract made by defendant, with a firm of which plaintiff was a member, dated 8th March, 1852, by which the payees agreed “ to furnish the defendant with a forty saw-gin, as *368good as any made, if not, they would furnish one that would.” Under our statutes and the decisions of this Court, the plea of failure of consideration is a good defence if sustained by the evidence, and also a plea of partial failure of consideration, instead of driving the party to his cross action. But here was a special contract, and the question is, whether the parties did not stipulate among themselves, that instead, of a recision of the contract, by the purchaser, on the failure of the gin to perform well, he was not bound to accept another in lieu of the one first furnished, and to enable the party to do it, to give notice of the failure ? There are but two members of the Court presiding, and they differ on this point. The consequence would be, that the judgment of the Court below must be affirmed, because of this disagreement, if the case were to stop here. But as we are both inclined to hold, that the witness Oglesby was sufficiently the agent of the' plaintiff to bind him by his conduct, we prefer to put the judgment of affirmance on a different ground. Oglesby was employed by plaintiff’s agent to repair the gin, if necessary. The head-block broke and he did repair it. When the cylinder broke, defendant sent it to him to be repaired again, and it was never returned. Mr. Oglesby was the employee of the plaintiff, (or which is the same thing, of the firm of which he was a member,) to repair this identical gin. Mr. Oglesby was not the agent of the plaintiff to receive notices, but he was the agent to repair the gin, and when delivered to him for that purpose, the gin was in the possession of the plaintiffs. It would be a good defence to an action of trover against the defendant for this gin, that it was delivered to plaintiff’s agent by his authority. The delivery of the gin to plaintiff’s employee to be repaired, and his keeping it, is equivalent to notice to plaintiff.
Judgment affirmed.