The Court,
Houston, J.,charged the jury: That if the con-, tract or understanding between the defendant and Harvey was, that the- latter should construct the machine or was to have it constructed for the defendant, the plaintiff could not maintain the action, unless it appeared from the evidence, to their satisfaction, that the work was passed over by him to the plaintiff, to be entirely devised, superintended, and performed by him, and not by himself, or in his establishment, with the knowledge and consefit of the defendant ; for in such a case the plaintiff might recover, if the jury were satisfied from the evidence that the defendant, with knowledge of the substitution of the plaintiff by Harvey in his place, assented to it; and afterwards looked to him and not to Harvey, as the machinist who was to do the work for him. But unless this appeared, the plaintiff could not maintain the action, and -his only redress would be against Harvey who employed him to do it.
As to the manner in which the work had been done, it seemed that this was a machine which had recently been invented by the defendant, and the object was to have a trial machine constructed according to a model submitted by him; and if the machine was skilfully made according to that model, or according to variations or modifications introduced into the plan of it with the approbation and concurrence of the defendant, and it failed of its object in *465consequence of deficiencies or defects inherent in the model itself, or in the plan of it as modified with the assent of the defendant, the plaintiff would be entitled to recover a fair and reasonable compensation for his labor and the materials furnished by him in constructing it, to be determined by the jury; provided they should be satisfied that he was entitled to maintain the action on the point first adverted to and stated by him. If, on the contrary, it should appear from the evidence that the deficiency was not in the model, but was in the unskilful and defective manner in which it was constructed by the plaintiff, and in consequence of that fact it was of no use or value to the defendant as a machine for cutting corn, the plaintiff was not entitled to recover in this action.
Verdict for defendant.