— This was an action on account by plaintiff as consignee of it, for a wind-mill, pump and fixtures, alleged to have.been sold to the defendant and erected on his farm by the Flint & Walling Manufacturing Company.
The petition was as follows: “Plaintiff states that on the first day of March, 1885, the defendant purchased of Flint & Walling Manufacturing Company, of Kendallville, Indiana, a corporation duly incorporated under the laws of the state of Indiana, one 10-foot Star wind-mill, for $90, one No. 6 force pump 3-w cock, brass cylinder for $25; one 2-J- by 8 Round Tank for $27; one 30 ft. Tower Complete, for $15; erecting tower, $10, 34 feet; No. l-j: Gal. Pipe and rods at 40c., $12.60, all of the aggregate price and sum of one hundred and eighty and sixty one-hundredths dollars, as will more fully appear from the itemized statement of account herewith filed. That all of the above-described property was delivered to defendant, and defendant has failed and *411refused to pay for the same. Plaintiff further states that said account has heretofore been, for a valuable consideration, assigned, transferred and set over to plaintiff by said Flint & Wailing Manufacturing Company and plaintiff is the owner thereof, and all of said amount is owing plaintiff, by defendant, wherefore plaintiff asks judgment for the sum of $180.60 and costs of suit.”
The defense was that the mill and punip were not purchased, but were put up oh defendant’s farm by the agent of said company as an advertisement; that the signature of defendant to the written order for the mill and pump was procured through the fraud of the agent of the company, in representing,to said defendant that the order contained nothing but a description of the mill and pump and the numbers of the land where it was to be put up, and was taken simply to show the company where'its mill and pump were, and that defendant never intended or agreed with said agent to purchase them.
No reply was filed to defendant’s answer, but the ease was tried as if a reply was in.
Defendant’s evidence tended to prove the defense set up in the answer. The plaintiff introduced evidence in rebuttal, tending to disprove said defense^ and tending also to prove that after the mill and pump were erected upon defendant’s farm, the defendant promised plaintiff, as agent for the Flint & Walling Manufacturing Company, to pay for the. same, the testimony of one of the witnesses being that the defendant promised to pay the account. All of which the defendant, however, denied.
The court for the plaintiff gave the following instruction: “Although the jury may believe from the evidence that defendant Beasley supposed and believed at the time he signed the contract read in evidence that he was not purchasing said mill in said contract mentioned, but only authorizing said pump to be placed and erected upon his farm on exhibition, yet, if you further believe from the evidence that after said pump had been placed and erected on said premises, the defendant *412Beasley agreed to pay for the same as soon as he had sold some stock, and that plaintiff is the owner of the account in question, then the jury will find for the plaintiff, and assess his damages at the amount due and owing the plaintiff, under the contract, and for any amount owing for goods or materials furnished defendant, if any, not included in said written contract, at defendant’s request afterwards.”
The court refused instructions asked by the defendant, which in substance told the jury to find for him if they found the facts to be as pleaded in defense, and added to them these words: “Unless you believe that afterwards defendant agreed with Bailey to pay for said wind-mill,” and gave the instruction thus-modified.
We agree with plaintiff’s counsel, that if after the mill and pump were erected, the defendant purchased them by accepting them as his and agreeing to pay for them, he is bound to pay for them, although he did not purchase them before they were erected, and that for this reason most of the objections urged by defendant’s counsel to the action of the court in giving the instruction for the plaintiff above set out and in modifying the instructions, asked by defendant are without merit, still we do think that one of such objections is well taken.
Notwithstanding the original contract for the purchase of the machine was void on account of fraud, the defendant may have, as we have just said, afterwards purchased the machine, but unless he agreed to pay the price named in the original contract he was bound to pay only the reasonable value of the machine. For this reason it was error for the court to instruct the jury to find for the plaintiff the amount due and owing under the contract, if the defendant afterwards agreed to pay for the machine. There was evidence tending to prove that the defendant agreed not only to pay for the machine, but to pay the contract price, but the question as to whether he did agree to pay said price was not submitted to the jury.
Judgment reversed and cause remanded.
All concur.