The order for the harvester, for the price of which this suit was brought, was obtained from appellee by one Stater, a soliciting agent, working under the general agent of appellants at Galesburg. Appellee defended upon the ground that the harvester did not fill the 'warranty given, and that he was under no obligation to keep it. In addition to the contention that appellee refused to give the machine a fair trial on the day the expert undertook to fix and operate it, counsel for appellants contend that appellee’s defense should not prevail, because,
1. The machine was delivered and used before settlement.
2. More than one day’s use of the machine ivas had by appellee, which amounted to an acceptance under the warranty.
3. Appellee did not return the machine to Williamsfield, the place where received, as he agreed to do if it did not fill the warranty.
We are satisfied from the evidence that the machine did not fill the warranty, and that it was given a fair trial. Appellants, by the contract of their agent, waived the condition that the warranty should not be binding if the machine was delivered before settlement.
We do not think there was more than one day’s use of the machine by appellee. The evidence shows he tried it during the afternoon of one day and the forenoon of the next. Applying the familiar rule, “The law knows no part of a day,” counsel for appellants insist the machine was used two days. This rule is a good one in the court house, hut will hardly work in farming. In the meaning of the óontract before us, the half of one day and the half of the next amount to but one whole day.
Appellee engaged to return the machine to Williamsfield if it could not be made to fill the warranty. It is quite clear he was in no position to insist upon the warranty, unless he had either so returned it or been excused from so doing. Such excuse, he contends, was furnished in the letter of the general agent, Kenney, of July 14, 1888. . We think not. To illustrate: A, living in a country town, orders goods from a firm in Chicago, agreeing to return the goods at his own expense if not of the kind and quality ordered. On receiving the goods he finds they are not of the quality ordered, notifies the Chicago firm and refuses to accept them. The firm replies by letter that the goods are of the quality ordered; that they are his goods, and that unless settled for at once they shall proceed to collect by law. Is A thereby relieved from a performance of his agreement to return the goods at his expense if not of the quality ordered ? Can he retain the goods, or turn them out to waste and entirely defeat a recovery by showing that they were not of the quality ordered ? The illustration is a parallel to the case at bar. There can be no application to this case of the rule of law that where the party to whom the payment of money or the delivery of property was to he made, notifies the party whose duty it was to pay or deliver that the same will not he received, such refusal is a waiver of tender and performance. Appellee had not been notified that the machine would not be received at Williamsfield. The letter of Kenney can not be given such an interpretation. It merely notified him that Kenney considered him as having accepted the machine, and that unless settled for at once he 'would proceed against him. To 'this letter appellee did not deign to reply, but allowed the machine to remain ■where it was in his field. To make his defense complete against the plaintiffs’ claim he should have returned the machine to Williamsfield. Retaining the machine in his possession, as he did, when sued for the price of it, he could only show, by way of defense, breach of warranty in mitigation of damages. In this view of the case it is unnecessary to consider the other errors assigned.
The judgment will be reversed and the cause remanded.
Reversed and remanded.