June 1st, 1874.
In order to affirm this judgment it is wholly necessary to deny the truth of the propositions of the plaintiff’s points, the answers to which are assigned for error. They all overlook the fact that the written proposition, which required the cylinder, valve gear regulators, and necessary posts, to be delivered at the works and placed in successful operation, implies by those words a contract that the machinery should answer its intended purpose. The judge well said that articles of such character, bulk, weight, &c., require trial and much experiment, to determine whether they will answer or not. An immense mill, run by many hands, working large amounts of material, is not to be put out of operation, and its machinery thrown out, much less returned, because of defects which the owners may think it better to try to remedy than to have the whole cast idle on their hands until new machinery can be had to supply its place. It was natural they should bear with it long and try many expedients. Having the written guarantee for successful operation it did the plaintiff’s no injustice to try the new machinery long and well before throwing it back on their hands. The whole matter depended upon the facts as applied to the written engagement, and these facts were properly submitted to the jury. The case was not that of an ordinary purchase of a thing without special terms, and the property could not, like a horse, or a small machine, be tested and returned in a few days.
Finding no error the judgment is affirmed.