Plaintiff, who was a manufacturer in Eochester, New York, sued defendants, under the common counts, for a brick-making machine and appurtenances, which he claimed they ordered from. Detroit, and he sent to them there in April and May, 1884. Defendants pleaded the general issue.
On the trial the chief controversy was whether defendants had purchased and accepted the machine absolutely, or whether it was sent to them, or kept by them, under circumstances which made them bound to pay the purchase price as demanded. After the testimony was all in, the court took the case from the jury, and ordered a verdict for plaintiff for all he claimed.
Plaintiff’s counsel undertook to make out his case, and rested his direct examination, by proof to this effect: He
introduced first a letter dated February 22, 1884, from defendants, which simply asked plaintiff to—
“ Write us full details of your brick-machine, and lowest prices, percentage, etc.”
Next, under objection that he should show how he answered this letter (which objection was overruled), a letter was shown from defendants, of April 14, 1884, as follows:
*461“ Please send us immediately your steam-power machine, all complete, with everything attached, in perfect order. Send at once, as we shall commence brick-making pretty soon.”
Also a letter of April 16, 1884:
“The size of the mould is 2-J inches thick, 8J long, and 4 in. wide. Please send as soon as you possibly can, because we want to start in 8 or 9 days.”
Also one of April 21, 1884, purporting to answer one which plaintiff did not produce :
“Yours of the 18th to hand, and contents noted. We are supplied with trucks. Please ship the machine a3 soon as possible, as we want to commence making bricks about this day week.”
This completed the list of letters shown by plaintiff. He then testified to shipping the machine and moulds according to the order. He swore to the price of the machine at $550, and of the moulds at $87.50 and $59.50, and that defendants had not paid him. He computed the interest at $83.34, and this was what the court allowed him. This made the interest run from early in May, between the first and second shipments.
The court held this to make a prima facie case, and refused to require plaintiff to show the correspondence on his own side, a part of which was brought in subsequently by defendants, who were compelled to show it on their own behalf.
The fact that it came in afterwards might have made the order of proof less important if it had not led to a misapprehension concerning the burden of proof of some consequence.
These letters, unexplained, fall short of showing what the contract was. The first was merely a letter of inquiry, which, if unanswered, was irrelevant, and had nothing to do with the case. If answered, the answer would have shown the terms and description of the property, which are not *462shown by any of the other letters. There is nothing in the testimony, as given on the direct examination, which shows any meeting of minds on what was included in the bargain, or its price or terms of payment. The letter of April 21 contains a direct reference to a letter of plaintiff, to which it purports to be a reply, and which, therefore, was essential to its construction. On the cross-examination a letter from plaintiff was drawn out, which appeared on its face to be plaintiff’s answer to the first letter, which gave prices of various styles of machines, described the machine and its qualities, and otherwise explained what was inquired about. This letter the plaintiff refused to put in as part of his case when produced, and the court refused to require it, intimating that he had already made a prima facie case, and need do no more. In our opinion, he had not made out such a case, and could not leave out a part of the correspondence which explained the rest with which it was connected. The first letter was .meaningless without it.
This letter is a very important factor in the case, and we think the court below gave it no adequate effect. It was written February 22, 1884, and was an answer to the letter of inquiry first put in. There seems to be a mistake in the date of one or the other, which is not, however, important. This answer of plaintiff details at considerable length what he conceives to be the merits of the machine, with some description of its qualities and capabilities. The prices given were $500 for horse-power and $550 steam-power, payable in net cash, referring to a circular, which is not in evidence, for more full details. A postscript follows in these words:
“ I propose to sell this machine on its merits, and, being a new machine, and . not introduced in your city, if you want to buy, you can put up a machine and try it, and if it will not do all I claim you need not buy. Your letter was forwarded to me from Rochester, which accounts for its not being answered sooner. If you should write me within a week or two, please direct to Milwaukee.”
*463On his cross-examination plaintiff swore that he had a traveling agent who looked after putting up these machines, and whom he sent to Detroit for that purpose. It appeared from a letter of May 8 that plaintiff had not then sent him, but was expecting to do so, and ready to do so at once if required. It appears he afterwards went to Detroit, and acted in the matter.
There was testimony showing a series of experiments and breakages and failures after the machine was set up, and tending to show that changes were made hy plaintiff and his agent; and also testimony tending to show, although in some things conflicting, that defendants were unwilling to keep the machine, Which did not work well, and that plaintiff urged further experiment, and that finally defendants refused to retain it. But, nevertheless, the court' below ordered a verdict for plaintiff.
It seems to have been assumed by the circuit court that there was an absolute sale shown beyond contradiction, and a defense in the nature of breach of warranty. But such was not the real state of things.
There was nothing in the case to show that the letter from plaintiff of February 22 was designed to be acted on at once, and disregarded if not at once acted on. The propositions of price and terms of payment were not restricted by its terms; and the proposition to make a conditional sale, in order to have the machine introduced, was one which defendants had a right to act on as continuing, unless in some way notified to the contrary. If their order, which was a part of a train of correspondence, was not to be accepted under that communication, there was nothing to indicate that they were so informed, and the order distinctly referred to that to show what machine defendants wanted. The testimony indicates that both parties were acting on the same idea, and there was no evidence of any demand of payment until August, and none of any bill rendered at any time. If the sale was con*464ditional, the testimony of defendants was positive that it was finally and seasonably rejected; and upon this issue they had a right to go to the jury, as they had also upon the question whether the sale was absolute or conditional, if there was any testimony which could be regarded as making it absolute. We have found no such testimony.
We do not think the court had any right to take the case from the jury. The real — and, so far as we can see from the record, the only — question was whether the sale ever became absolute by delay, estoppel, or otherwise. The pleadings for the defense did not bring in the defense of breach of warranty. They met distinctly the charge of a sale, on which plaintiff was suing for the price or value. The deficiencies bore on the duty to accept, and the right and seasonableness of rejection.
The judgment must be reversed, and a new trial granted. In addition to the regular costs, defendants are entitled to $20 for the costs of a motion here to have the bill of exceptions remanded, and of attending the circuit judge, who failed to find any occasion to change it.
The other Justices concurred.