
    Geiser Threshing-Machine Company vs. Henry Dresden and another.
    May 30, 1882.
    Tlie evidence in this case held sufficient to sustain the findings of the referee.
    Appeal by defendants from an order of the district court for "Watonwan county, Severance, J., presiding, refusing a new trial, after ■a trial and decision by F. L. Janes, Esq., referee.
    The action wras brought upon promissory notes given by the defendants for the unpaid portion of the purchase price of a threshing-machine, two years and a half after the original purchase, and in .renewal of old notes. Defendants set up a counterclaim founded on an alleged breach of a warranty made on the sale of the machine, and alleged that, at the time the notes in suit were given, it was agreed that they should not prejudice defendants’ right to damages for breach of the warranty. This allegation the referee found to be untrue, and he also found that defendants had failed to establish their counterclaim. The only direct evidence as to the worth and efficiency of the machine was the testimony of defendant Herniman.
    
      J. W. Seager, for appellants.
    
      W. G. Jones, for respondent.
   Mitchell, J.

The evidence in this case is clearly sufficient to sustain the findings of the referee. The error into which the appellant has fallen is in supposing that the direct testimony of Herniman, tending to show a breach of the warranty of the threshing-machine, was controlling, because there was no direct evidence to rebut it. It was the right as well as duty of the referee to consider the circumstantial evidence, which, in this case, was very strong against the defendants. The testimony of Herniman regarding the quality of the machine was vague, indefinite, and unsatisfactory. The manner of defendants in dealing with the machine, the fact of their making large payments upon it, and finally, after the lapse of several years, executing to plaintiff new notes for the unpaid balance of the purchase-money, without, as found by the referee, alléging any de-feds in the machine, or making any claim for the damages which they now claim, tend very strongly to prove that their present defence is unfounded, and fully warranted the referee in finding that defendants’ counterclaim was not established by the evidence.

Order affirmed.  