
    14374.
    Turk v. Raymond Phonograph Company.
    Decided. October 12, 1923.
   Jenkins, P. J.

In this suit on open account for the purchase-price of certain phonographs, the court erred in directing a verdict for the plaintiff for the full amount sued for, since there was oral evidence offered by the defendant, from which the jury would have been authorized to find that there was a failure of consideration with reference to two of the three phonographs delivered by the plaintiff to the defendant, and that the defendant, as required by a provision in the correspondence expressing the sale agreement of the parties, had within the necessary ten days after receipt and attempted use of the machines notified the plaintiff that they wore unsatisfactory. Under a proper construction of this clause, providing that, “if after 10 days fair trial you are not satisfied, or the machines were not what they were represented to be, we will upon receipt of advice from jmu furnish shipping instructions, refunding you whatever you have paid,” it was not necessary for the defendant expressly to request the plaintiff to furnish shipping instructions; but a notification within the stipulated time that the machines were unsatisfactory would suffice, and place upon the vendor such onus, where the purchaser, after so rejecting the machines, held them subject to the vendor’s order. The remaining grounds of the defendant’s motion for new trial, involving questions not likely to recur on a succeeding trial, are not such as to require determination.

Judgment reversed.

Stephens and Bell, JJ., concur.

Complaint; from Taylor superior court—Judge Munro. February 2, 1923.

Gilbert G. Robinson, C. B. Marshall, for plaintiff in error.

Homer Beeland, contra.  