
    Golden Gate Concentrator Co., Resp’t, v. John Caplice, App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed April 2, 1888.)
    
    Sale—On trial—Effect of retention of article beyond time fixed for test.
    Where a contract of sale provides that the buyer shall have a period therein stated in which to make trial of the articles sold, the retention of the articles beyond the time limited renders the sale absolute, and vests in the vendee a right to recover the purchase price agreed upon.
    Appeal from a judgment in favor of plaintiff directed by the court. The action was to recover the contract price of two machines known as concentrators.
    The facts, as stated by the judge, are as follows:
    On July 31, 1885, plaintiff was owner of two machines known as concentrating tables, which are used for separating valueable ore from waste matter. The tables at this time were in the possession of the firm of Murphy, Churchill & Buchanan, having been delivered under a cond.tional contract of sale, the title to vest only when the tables were paid for. The defendant desired to purchase the machines, and Murphy, Churchill & Buchanan were willing that he should, as they were unable to pay a certain balance due on them, which the plaintiff was desirous of obtaining. At this time, July 31, 1885, plaintiff made the following written offer, as a proposed agreement and it is the only agreement between the parties, and their respective rights and liabilities grow out of and are founded upon it:—
    “Boston, July 31st, 1885, Mess. Benj. Tatham. JohnCaplice, A.D. Churchill and I. Gcniro Murphy, and Murphy, Churchill & Buchanan and Capital Milling Co., Gents:—In settlement of the matter of the concentrators made by us and now at Ten Mile (Rimini), Montana, we' .make following proposal, which will be binding upon your return of this paper or a duplicate of it, with ■an acceptance of its terms signed with your several signatures, within ten days from the date hereof. You are to be at liberty to start the concentrators and make a thorough test of them, under the supervision of William A. Leonard. .Within sixty days from this date if they shall have proved to he good and effective machines, and to do your work of concentrating ores as well and economically as any concentrating machines are now doing similar work upon similar ores inMontana, Hr. Benj. Tatham and Mr. John Oaplice are to send us a check for the amount which Murphy, Buchanan & Oliurchill agreed to pay and have not paid for the machines with interest at 6 per cent. If the machines do not so prove you are to deliver them properly boxed, subject to our order and as our property, at the nearest railroad station to your mines in Montana Upon receipt of the check, we are to give Messrs. Tatham and Oaplice a bill of sale of the machines accompanied by a license to use them at their mines, and an agreement to substitute for this license at any time, upon demand, a license to run them at any designated spot, not situated within territory for which we shall have given exclusive license. Golden Gate Concentrator Co., by Horace P. Tobey, Pres.”
    “ We accept the above proposal with the understanding that if at the expiration of the sixty days named, W. A. Leonard shall certify that circunstances have prevented a satisfactory testing of the machines, an extension of time of thirty days shall be given upon his (Leonard’s) request therefor. Benj. Tatham, John Oaplice, I. G. Murphy, A. D. Churchill, The Capital Milling Co,, per A. D. Churchill, Prest.” This proposed contract was mailed' about July 31, 1885, to Benjamin Tatham, John Oaplice and the others, and received back signed by them early in August, 1885. William A. Leonard was from a time prior to July 31, 1885, until December 30th of that year, in the employ of the defendant as superintendent of his mill. In pursuance of a request made by Leonard the plaintiff extended the time within which a test should be made to December 1,1885. No other extention of time was given or requested. The machines were retained by the defendant alter December 1. In his testimony at the trial he says, “The work of concentrating and testing ores did not actually begin until about the first of December, or the last week in November, the test continued until somewhere close to January * * * the tables were in operation to the first part of January.”
    It does not appear that the plaintiff was informed until February 1, 1886, that the machine had not proved satisfactory under the contract, nor does it appear that the machine was boxed until the summer of 1886. It does not appear that the tables were ever delivered subject to the plaintiff’s order, and as its property, or otherwise, at the nearest railroad station to the mines of defendant in Montana. The machines are now at defenant’s mill in Montana, the plaintiff having in proper time notified defendant that he considered the sale absolute. At the trial, the learned judge, having excluded evidence offered by defendant tending to show that the machine could not concentrate ores as well as economically as any concentrating machines then doing similar work upon similar ores in Montana, said, “It was your (defendant’s) duty to return those machines on the first day of December or pay for them,” and thereupou he directed a verdict for the plaintiff for the amount ¿claimed, it having been admit: ed by the answer that the amount due and "unpaid by Murphy, Buchanan & Churchill, for the machines was as claimed in the complaint.
    
      Paddock & Cannon and De Witt C. Brown, for app’lt; Thompson, Ackley & Kauffman, and J. Edward, Ackley, for resp’t.
   Dugro, J,

A reading of the contract, and extension of time to test, clearly shows the intention of the parties to have been that on or prior to December 1st the machines should be paid for or returned. During the month of December,- they were in use by the defendant. Whether he was testing them or using them for other purposes is immaterial. He was exercising the rights of an owner over them. He.had no right to use the machines for any purpose after December 1st, unless he accepted them. The contract shows the intention of the parties to have been that within the period of time fixed for the test, if defendant did not desire the machines, he was to properly box them as the plaintiff’s property, and deliver them subject to its order; at the railroad station nearest the mines. This was not done, but the machines were retained by the defendant and used for purposes of his own until the February following, and at that time, it seems the plaintiff first learned that defendant did not desire them.

By his acts the defendant made his election. He had retained and used the machines beyond the time specified; he had failed for two months to signify to the plaintiff his determination to accept or reject them in the manner provided by the contract, or in any other way. He must therefore be assumed to have accepted them, as though they had answered satisfactorily every test imposed.

In sales on trial, the mere failure to return the goods within the time specified for trial, makes the sale absolute. Benjamin on Bales, Bennett’s ed., § 595.

In the case of the Prairie Farmer Co., 69 Ill. Rep., 440, the suit was for a press delivered under an agreement that the buyer should have thirty days to determine whether to keep the press dr not. Scott, J., in delivering the opinion of the court, says: “On failure of the appellant within thirty days to elect whether it would keep the press or not, the right vested at once to recover the contract price * * It made no election and gave no notice of its intention; the presumption will be deemed conclusive it intended to keep the press unless it gave notice to the contrary.” In many respects the present case is similar to that of Spickler v. Marsh, 36 Maryland Rep., 222. In that case defendant agreed with plaintiff to take his mower and reaper at a stated price, and try it in mowing grass, wheat, etc. If after such trial the defendant did not like the machine, he was to return it. He tried it at the harvest of 1864, but not being satisfied, agreed in the fall of that year to give it a further trial, and if not then satisfied to return it to a certain railroad station. The court said: “ The sale was one at the defendant’s option. By his agreement he was bound to return the reaper within a reasonable time: after the harvest of 1865, or keep it at the stipulated price.”. ¡ The case under consideration is not one of warranty, and j therefore it is immaterial whether the machines proved to! be good and effective and able to do the work as mentioned Í in the' contract.

It was the business of the defendant to determine this1 and keep or return them at the proper time. j

Entertaining the opinions stated, I cannot see that error occurred at the trial; the judgment is therefore affirmed,, with costs and disbursements of appeal.

Sedgwick, Ch. J., concurs.  