The opinion of the court was delivered by
Kellogg, J.It is apparent, from the facts reported by the auditor, that, by the very terms of the contract between the parties, the plaintiff’s right to recover compensation for the pump was made to depend upon the goodness of the article he should furnish. If he did not malte a good pump, he was not to receive any pay for it. It is equally evident, that the pump, which the plaintiff made and furnished to the defendant, failed to answer any valuable purpose, that it was not constructed upon an approved plan, and was not such a pump, as he contracted to make for the defendant.
But it is said, that the defendant accepted the pump without objection, and put the same in operation, and thereby waived the right of objecting thereafter; and the case of Wilkins v. Stevens, 8 Vt. 214, is cited as an authority to support this position. If the defects in the pump were .apparent, and the defendant accepted the pump without objection, and with a knowledge of its defects, then the case cited would be an authority in point and decisive of the present case. But it does not appear,- that the imperfections in the pump were apparent, or known to the defendant, at the time the same was put in operation; and when the defects and imperfections were discovered by the defendant upon trial, he made it the subject of complaint to the plaintiff. We think it apparent, from the contract and the conduct of the parties under it, that, when the pump was put up, it was to be tried by the defendant, for the purpose of ascertaining whether it was a good one and would answer the purpose intended. His use of the pump cannot, therefore, be regarded as a waiver of his right to object to such imperfections and defects, as the use and trial of it might disclose.
It is, however, farther insisted, that the plaintiff is, at all events, entitled to recover for the repairs made upon the pump, at the request of the defendant’s wife in January, 1843. To this item of the plaintiff’s claim it may be answered, that the pump never be*582came the property of the defendant, that he had never accepted it, but for the purpose of trial, and that, upon discovering that it failed to answer the contract, he had, in the winter of 1843, and at several times previous thereto, requested the plaintiff to take it away. It was, therefore, a repair of the plaintiff’s property, for which the defendant was in no manner responsible.
We are satisfied with the judgment of the county court and the same is affirmed.