Spickler v. Marsh

Brent, J., delivered the opinion of the Court. Me do not think there is any difficulty about this case. The transaction, as disclosed by the proof, constituted what is called “a sale or return.” The appellant agreed with the appellees to take their reaper and mower, the price of which wuJ $185, and try it in cutting grass and reaping his wheat. If after such trial he did not like it, he farther agreed to return it. He tried it at the harvest of 1864, but not being satisfied he agreed in the fall of that year to give it a further trial at the harvest of 1865, and if not then satisfied to return it to a certain railroad station mentioned in the contract. He did not return it, or give the appellees any notice that he was dissatisfied with its performance. It is true the machine was represented to him as one that would do the work, for which it was designed, well and effectually. He did not however take it upon this representation, but by electing to take it upon trial, determined [228] to be himself the sole judge of its merits. The sale was one at his option, and if he did not comply with his part of the agreement he cannot now be heard to complain. By this agreement he was bound to return the reaper within a reasonable time after the harvest of 1865, or keep it at the price stipulated. He never did return it, and the appellees are fully justified in treating the sale as absolute. This doctrine is established by the authorities referred to in the appellees’ brief, and also by the case of Dewey vs. Erie Borough, 14 Penn., 211. This case was a suit upon a note at twelve months, for the purchase of a town clock, “conditioned however that the clock performs to the satisfaction of the burgess and town council.” The clock was defective, but there had been no offer to return it. In deciding the case Gibson, C. J., says: “The transaction before us is analagous to a transaction between merchants called ‘ sale or return,’ by the terms of which, the party to whom the goods are sent is bound to return them with notice of his dissent within a reasonable time, or.keep them on the terms of the offer; or it is perhaps strictly a conditional sale, of which the same principle is an element. Such was the sale in Humphreys vs. Carvalho, 16 East, 45, and many other cases, which it is unnecessary to quote, the principle being settled. The defendant promised to pay the price at the expiration of a year, on condition that the clock should perform to the satisfaction of the burgess and town council or their successors. The corporation, consequently, had a year to signify its determination. This is not the case of warranty, and it is immaterial whether the clock performed well or ill; it was the business of the burgess and council to judge of that and keep the clock or return it at the proper time.” These principles are quite applicable to the facts of the case before us, and in view of them the instructions granted by the Court below are without error. (Decided 18th June, 1872.) Judgment affirmed.