Waters Heater Co. v. Mansfield

The opinion of the court was delivered by Royce, J. The agreement of the parties was evidenced by the written order of the defendants and the agreement of the plaintiff of the date of November 1, 1871. The case finds that the plaintiff shipped the heater, and that it was received by the defendants within the time limited by the order, and that he sent with it the printed directions as agreed. This was, all that the plaintiff was under obligation to do. The defendants agreed to attach the heater to their works within sixty days from the date of the order, and were to have the privilege of using it thirty days after it was attached, and if it worked satisfactorily, were to pay for it, and if not, to return it to the plaintiff. The defendants never attached the heater to their works or returned it, and now deny their liability to pay for it, upon the ground that they ascertained after the expiration of the time limited by the order for them to make their election to keep it and pay for it or to return it, that a similar heater which had been ordered by the Rutland Marble [381] Company had been tested by them, and had proved-unsatisfactory and been rejected, and that they were deceived by the plaintiff as to the expense of attaching it to their works. We think the County Court ruled correctly in holding that this was not available as a defence, and that upon the facts found, the defendants were liable for the price agreed by the order to be paid. Judgment affirmed.