Chicago Pneumatic Tool Co. v. Sims

Wood, J. (after stating the facts). We can not explore the record to determine whether the instructions were correct, but assume, in the absence of all the instructions, -that the court correctly charged the jury. The evidence adduced by appellee was clearly sufficient to support the verdict in his favor. Appellant contends that, as the evidence does not show that appellee returned or offered to return the compressor, he cannot recover. But a return or offer to return the machinery under the terms of this contract was not necessary. The appellant “binds itself to take back said machinery and to refund the money” if the compressor does not throw the water as specified. Where machinery is sold on a guaranty to do certain work, or, if not, that the seller will refund the purchase money, then, if the vendee makes a bona tide test thereof under his contract, and finds the same not according .to the warranty, and so notifies the vendor, and also notifies him that he (the vendee) declines to accept it, it is not a prerequisite to recovery of the purchase money that he should return or offer to return the machinery unless there is an express agreement so to do. The contract in such case remains executory until the warranty has been discharged or there has been a-waiver thereof by acceptance on the part of the vendee. The legal effect of this contract is “a sale on approval” or on compliance by the vendor with the conditions named. For the seller virtually agrees that the machinery shall do what the buyer wants it to do, as specified in the contract. Exhaust Ventilator Company v. Chicago, M. & St. P. Ry. Co., 34 N. W. Rep. 509; McCormick Harvesting Machine Co. v. Chesrown, 33 Minn. 32. But, of course, the machinery under such contract, if the conditions fail, belongs to the vendor, and he may retake it at any time after he has received notice that the vendee has not accepted same. No reversible error being found, the judgment is affirmed.