D. M. Osborn & Co. v. Stanley

Mr. Justice Beckwith delivered the opinion of the Court: This is a suit upon a promissory note; the defense a failure of consideration. On the trial in the court below it appeared that on or about the 1st of July, 1860, the defendant in error purchased of the agent of the plaintiffs in error a patent reaper and mower for the sum of $135. On the sale,-the agent of the plaintiffs in error represented that the machine was a good one; and it was agreed, that the defendant in error was to take the same and try it, and if it operated satisfactorily he was to keep it; if it did not, he was to return it, or the agent of the plaintiffs in error would make it right. The defendant in error took the reaper,1 used it without complaint1 that season, and on the 1st of August, 1861, gave his notes, without objection, for the price. The reaper was used during the season of 1861; no offer being made to return it, and no complaint in regard to it. All the notes but the one now in suit were paid without objection. Under these circumstances, the second instruction asked by the plaintiff, that “ if the purchaser was not to keep the article purchased, unless it pleased him, he should have returned it, if it displeased him, at the earliest practicable moment; and if he did not do so, it is not competent for him to prove the article to have been worthless,” should have been given as requested, and the modification added by the court, that “ if he chooses, however, to keep it, he will be compelled to pay what it is actually worth but no more,” was clearly erroneous. The plaintiffs in error were under no obligation to receive back the machine, or to make it all right, unless called upon so to do within a reasonable time after the sale. Nichols v. Guibor, 20 Ill. 285; 1 Pars. on Cont. 475; Buntain v. Dutton, 21 Ill. 190. In this respect so much of the instruction given for the defendant in error as directs the jury, “ if the agent of the plaintiffs told the defendant that the machine should be a good one, or he would take it back, or make it all right, then, in order for the plaintiffs to recover, they must prove that they have complied with their agreement,” was erroneous, and likely to mislead. The judgment of the court below is reversed and the cause remanded. Judgment reversed.