
    Harder v. Carter.
    August 5, 1895.
    Complaint on account. Before Judge Butt. Talbot superior court. September term, 1894.
    Suit was brought against Mrs. Carter for $147 as the • price of a “two-horse power with two belt-wheels, one the regular 42 inch wheel, and the other 24x6, for cotton-gin use.” She pleaded, that the power was sold to her as first class, perfect and complete, whereas it was worthless; and that it was sold to her for running a gin, plaintiff represent- • ing that it was suitable for that purpose, but, though used as directed by plaintiff, it was not so suitable and could not be used for running the gin. ■ The jury found for defendant. Plaintiff moved on the general grounds for a new trial, and the motion was overruled. From the evidence in his behalf it appeal’s, that the machinery was sold and delivered in August, 1890, to be paid for in the next-October. It was sold for thrashing and sawing, as well as for ginning cotton; and both parties so understood. During that fall season defendant wrote letters to plaintiff, complaining that the machinery was worthless to her and could not be used. In February, 1891, an agent of plaintiff’ visited defendant’s place, examined the machinery and found that it had been improperly put up, causing it to run heavily and lessening the force it would otherwise have produced; also, that defendant was using horses that were thin and of light weight, and so improperly shod that in treading the bridge they slipped, thereby becoming frightened, worried and tired. He adjusted the machinery in a. proper manner, and together with defendant’s employees-ran it and ginned cotton with it; and it worked well, just, as plaintiff said it would work, and accomplished good results and ginned as much cotton as could be expected with such horses as defendant had. She thereupon expressed herself as satisfied, and proposed to pay for the machinery-on the next day. She did not do so-, but later in the month wrote a letter to plaintiff, stating that she had been sick and that her house had been burned, but promising to send him New York exchange. In another letter after the agent’s-visit, she renewed her complaint of the machinery. She-never refused to pay for it nor tendered it back. From her testimony and that of another witness, it appears that the machinery was worthless for ginning cotton; and that the horses she used were of medium size. She denied having-expressed satisfaction or promised the agent to pay for the machinery, and claimed to have tendered it back by a letter to plaintiff; that she tried repeatedly to run it, obeying his instructions, and being anxious to succeed with it. The agent knew nothing of ginning cotton, and did not improve the machinery so as to gin satisfactorily, etc.
   Lumpkin, J.

Even if the machinery for the agreed price of which the action was brought was in fact defective or worthless, yet as the defendant, after the most complete and ample opportunities for trying and testing it, and,with full knowledge of its character and of all its alleged defects, deliberately promised in writing to pay for it, she could not thereafter set up in resistance to such action the defense of failure of consideration predicated upon alleged defectiveness or worthlessness of the machinery. Judgment reversed.

J. M. Mathews and J. II. Martin, for plaintiff.

Henry Persons & Son and J. L. Willis, for defendant.  