delivebed the opinion oe the Coubt.
That the machine failed to fulfill the warranty was fully proven, and indeed not seriously controverted. The provision of the warranty, “ that if, upon starting the machine, it should not work well, immediate written notice must be given,” etc., was waived by the agreement that appellant should start the machine, and appellees and an agent of the machine company would come and see that it was working properly, and if not, would remedy the defects, and by the fact they did come and acted upon such agreement without written notice.
The provision of the same instrument “ that continued possession of the machine shall be deemed conclusive evidence that the machine fills the warranty,” can not be invoked when such possession was continued with the consent of the appellees after they found it to be defective, and in order to allow them reasonable time in which to procure new pinions or wheels, deemed by them necessary to make it operate, in compliance with their contract. Appellees did not obtain these needed new parts until the harvest of 1894 was over. The test of the binder contemplated by the warranty, was successful operation in actual work in the harvest field. It could not then be applied. Appellees had conceded- the machine had not worked as warranted, and their several efforts to correct the defect had not succeeded.
Was appellant required to accept the act of appellees, in supplying another pinion and other wheels, and the belief of appellees, expressed to him, “ the machine would operate successfully,” as equivalent to an actual demonstration in the harvest field? We think not. He had the right to suppose it was appellees’ desire he should retain the machine and give it another trial.
This, in answer to a written demand for payment, he informed them he was willing to do, or was willing the machine should be returned.
They replied by letter to the effect he had accepted the machine by using it for one day, and must pay for it, and rely upon their warranty that it would work according to the contract.
And such seems, from an examination of the propositions of law, held and refused, to have been the view accepted by the court.
A warranty may be so drawn that the party aggrieved must retain the property, and recover damages for its breach, but that is not true when, as in this case, the instrument,- by its terms, gives the right to return the property and be relieved of all obligation to pay the price thereof.
A letter written by appellee under date of October 11, 1894, can not be construed otherwise than as a refusal to accept a return of the machine.
It relieved appellant of any present duty of hauling the machine back to their place and tendering it to them. He retained it until harvest was again at hand; notified appellees that he would again test it at actual work.
They attended and aided him in. the effort to make it do, properly, the work it had been constructed and sold and warranted to do.
The result was as before; it failed to fulfill the warranty. He returned it, as he had the right to do. We think the finding and judgment against him was erroneous.
It must be reversed and the cause remanded.