
    The American Gas Control Co., Appellant, v. C. Otto Kramer et al, Respondents.
    (Supreme Court, Appellate Term,
    July, 1897.)
    Contract — Time test of a gas governor.
    
      Semble, that a contract providing that a gas governor shall be paid for if it effects a certain saving, payment to be made “ after forty days* fair trial,” coupled with a further provision that the saving shall be “ demonstrated by an actual time test," indicates that no payment isi to . be made until a trial has been had, extending over forty days; and a time test, made twenty-two days after the machine was installed and showing a saving, assented to in writing by the purchaser, does not bind him to pay the purchase price where his- gas bills indicate no saving at the expiration of forty days.
    Appeal from judgment rendered by the justice of the- Third Judicial District Court in favor of the defendants.
    Hastings & Gleason, for appellant.
    Frank Thorn, for respondents.
   Bischoff, J.

This action was brought for the agreed price of two gas-goveming machines installed in the defendants’ premises by the plaintiff under a written contract, whereby the defendants promised to pay for such machines should they effect a saving of from 15 to 40 per cent, of gas, the payment to.be made “after forty days’ fair trial.” Further it was provided that, the saving should be “ demonstrated by an actual time test of the same burners consmning an equal number of cubic feet of gas, with and without governor, under full street pressure. Failing to record above saving, the machines to be removed free of all expense.”

Some twenty-two days after installation of the machines and twenty-seven days after the date of the contract, a time test, such as provided for, was made showing an apparent saving of a little more than 15 per cent., and the slips, recording the result, were signed by one of the defendants. '

It is claimed by the appellant that this was conclusive of its performance of the contract and that the defendants’ subsequent' expression of dissatisfaction, upon the ground that 'the forty, days’ trial of the machines showed' no actual saving* was without significance.

It would seem that this provision for “ forty days’ fair trial ” had some meaning and that the whole question of the plaintiff’s performance was-not intended to rest upon a test made before the expiration of that time. . .

It may be that the agreement sliould be construed as intending that the test was a “ demonstration ” to which, the consumer was entitled, but that the value of the machine, as an economizing agént, should be shown by a continued practical use for the full period stated.

Discussion of the subject is not essential, however, in this case> since ample evidence justified the cor elusion that the parties had agreed to abide the result of the forty days’ trial as shown by the state of the defendants’ gas bills at the expiration of -that time, and it was satisfactorily made to appear, that the machines, as so tested, ■had brought about an additional expense, rather than effecting a saving. .

If this evidence was open to the objection that it tended to' vary the written contract, no such objection was raised at-the trial, and we are to assume that the plaintiff consented that this proof of the actual agreement made should be received. .

As admitted to the cáse, this- evidence was-properly to be considered by the justice when reaching his conclusion upon the facts (Crane v. Powell, 139 N. Y. 379); a:id the result, as,based upon that evidence, is found to be unassailable.

Judgment affirmed, with costs.

Daly, P. J., and McAdam, J., concur.

Judgment affirmed, with costs.  