
    The Backus Manufacturing Company, App’lt, v. Charles L. Feldman, Resp’t.
    
      (Buffalo Superior Court, General Term,
    
    
      Filed July, 1894.)
    
    1. Contract—Place of return.
    Where a heater is sold to fulfill certain conditions and prove satisfactory, and it did neither, the purchaser has the right to return it at the place where it was delivered to him.
    2. Same—Consideration.
    In such case, an agreement by him to pay for its removal, is without consideration.
    S. Same—Notice.
    Notice to vendor’s employes who came to demand payment is sufficient, if the fact of such notice came to the managing agent.
    Appeal by the plaintiff from a judgment of the municipa ■court of Buffalo in favor of the, defendant upon the merits.
    
      George S. Wardwell, for app’lt; William Armstrong, for resp’t.
   White, J.

—According to the evidence of the defendant, in December, 1892, the defendant made an agreement with the plaintiff whereby it placed in his house on approval a natural gas heater, for which the defendant was to pay forty dollars if it fulfilled certain conditions and proved satisfactory to the defendant, and if it did not prove satisfactory then the plaintiff should take it back. The heater did not fulfill the conditions nor prove satisfactory, and the defendant notified several persons to that effect who came to inquire about and demand payment for the heater on behalf of the company. A controversy having arisen concerning the arrangement, the defendant promised to pay the plaintiff ten dollars and return the heater. As thé defendant claims, it was to be taken out by the plaintiff.

The plaintiff contends:

1. That, conceding the facts to be as. testified by the defendant upon the trial below, he became liable to pay for the heater because he failed' to return it to the plaintiff within a reasonable time after discovering that it failed to comply with the warranty, and

2. That the defense of an accord and" satisfaction as pleaded is not sustained by the evidence.

. The evidence as to a breach of warranty is very satisfactory, and the finding of the trial ¿hurt upon that question is well supported. I think the inference of the trial court, that the defendant was not bound to return the heater to the plaintiff at any place other than that at which' it was delivered to him by the plaintiff, is not without evidence to support it. The plaintiff claims it was to be returned by the defendant to the plaintiff. There is not a word of evidence as to where it was to be returned to, nor can it be said that the only inference to be drawn from the evidence of the plaintiff’s witnesses themselves is that the defendant was to take the heater back to the place where he first saw it. To my mind the presumption would' be, under such circumstances as are here disclosed, that the plaintiff would expect to receive it back at the place where it delivered it, and such is the import of the evidence of the defendant himself, where he says De Knight came to the house and disconnected the heater and promised to “ take it out ” if the defendant would give him ten dollars. If the claim of the defendant was true, the agreement to pay ten dollars was without any consideration whatever, in my opinion, for the reason that if the heater failed to comply with the warranty the defendant had a perfect right to return it at the place ° where it was delivered to him, in the absence of an express agreement that it should be returned to the possession of the plaintiff at some other place.

I am also of the opinion that the notice given by the defendant to the employes who came to demand payment for the heater was sufficient, especially as the fact of such notice came to the managing agent. The question as to the sufficiency of the notice seems to me to have but slight, if any, analogy to that which arises concerning the acts of an agent being within or without the scope of his authority. The efficacy of the notice in this case would not seem to be dependent upon the means by which it was given, but rather upon the fact of its having been received by Mr. Bell, the managing agent for the plaintiff, and he testifies that he called several times to see the defendant at his office between December and April, in consequence of such, a notice through Halpin, who made the contract originally with the defendant, and Halpin says the first dispute about the heater occurred about the 1st of February; and while Halpin testifies that no dissatisfaction was expressed by the defendant except as to some of the apparatus not being furnished and which was afterward furnished, it is at variance with the defendant’s version of the matter. There was a failure to establish an accord and satisfaction as pléaded by the defendant, but the judgment appealed from is supported by evidence, and unless it was incumbent upon the defendant to return the heater to the plaintiff at a place different from that at which he received it, and I do not think it was, the judgment was right upon the merits, and should be affirmed, with costs.

Hatch, J., concurs.  