Plaintiff sold defendant a 20-TI.P. gasoline engine for $675.00, of which defendant paid cash, $400, and for the balance gave the note herein sued upon.
The engine was guaranteed to be “as economical as any other engine working under similar conditions.”
The meaning of this guarantee, and the sense in which the defendant understood .it, was that the engine wnuld consume no more oil than any other engine when doing the same work. That was the only question in which defendant was interested. He was not concerned in the details and niceties of its mechanical construction.
*354June 7, 1909. Rehearing refused June 23, 1909.Tñe faét is, that the engine- did consnme considerably more oil than it should have consumed, and therefore did not come up to the guarantee.
Had the matter stopped there the case would have been simple. Defendant might not only have refused payment of this note, but might even have recovered what he had already paid. But in order to do so, he would have been obliged to return the engine to plaintiff in the same condition in which it was when received.
Instead of this, however, he kept the engine and proceeded to treat it as his own by changing the mechanism thereof so that the engine is now of a pattern and construction radically dif£e> ent from what it was when received.
In so doing defendant accepted the engine as his own and of course became liable for the price. His only claim against plaintiff is for cost of the changes made by him and necessary to correct the defects.
These changes cost $150.00, which amount was allowed by the District Judge.
We think the judgment of the District Court is correct, and accordingly it is affirmed.