(dissenting). I am unable to agree with the majority members either as to the law or the facts. It is stated, and reiterated, that the tractor was entirely worthless. Yet the defendant Thomas testified that in the years 1918, 1914, and 1915 he plowed hundreds of acres of land with the tractor. In 1914, in addition to plowing for himself, he also plowed 290 acres for one Davis, and gave an order upon Davis for $500, which was applied upon the purchase price of the tractor. And the majority members say that the defendant may recover from the plaintiff this money, which was earned with the machinery which plaintiff sold. Not only is it undisputed that the defendant was able to read and write, but his testimony shows that he entered into an agreement with the agent of the plaintiff that he would waive his claims against the company in consideration of the company furnishing a new set of drive wheels and lugs.
I quote from Thomas’s testimony as contained in the record on this appeal:
Q. So that at that time in the fall of 1914, Mr. Thomas, when Mr. Harrison was out there, in substance then and there you agreed with him, after talking the matter over, that if you would get these new wheels and lugs you would pay the freight on them and that you would take the old wheels in and return them to the company and never make any more demand or claim on them, didn’t you?
A. That was the agreement because we had come to the conclusion that the wheels was the cause of the gear breaking. We thought we had eliminated one of our main troubles by replacing the wheels.
Q. Well, you got the wheels didn’t you ?
A. No, sir.
*211Q. Why ?
A. Because the first wheels that was shipped to me wasn’t what we agreed upon.
Q. Was there some more shipped ?
A. Yes, sir.
Q. Didn’t you get them?
A. No, sir.
Q. Why?
A. Because, before I got enough money to get up there and pay the freight on them they had them shipped back. . . .
. Q. Do you know when they were shipped back ?
’ A. I don’t know when they were shipped back. I know they were there quite a while.
Q. And during that time all you had to do was to pay the freight on them ?
, A. Yes, sir, something that I didn’t have enough money.
Q. It was agreed upon* wasn’t it, between you and the company through Mr. Harrison at that, time that you were to pay the freight on them ?
A. Yes, sir.
’ Q. And you were to go there and pay the freight and take the wheels and put them on and return the old ones, and the question of your contract was closed then and there forever, wasn’t it?
| A. If I had got the wheels, yes, probably would have.
The majority members say that the waiver contained in the renewal note must have been in fine print. The note is not in the record on this appeal. No member of this court has seen it or knows what ixs appearance was. The trial judge, however, saw it. He also saw the witnesses and parties who testified,.and heard their stories. Tallmadge & Meyers, the agents who sold the machinery to Thomas, afterwards lost their agency. Their animus towards the plaintiff is apparent even from the printed page. The decision of the trial court should not be disturbed.