
    Cyrus Low v. William Pardee.
    
      Contracts—subsequent waiver of conditions. Where a party purchased a corn planter on condition that if he did not like it he was to return it, and in an action for the price of the planter, wherein it was sought to recover on the ground that the purchaser had retained it an unreasonable time, it appeared that the vendor had dispensed with the return of the machine, he preferring it should remain in the possession of the defendant, it was held there could be no recovery.
    Writ of Error to the Circuit Court of Mercer county; the Hon. Arthur A. Smith, Judge, presiding.
    The opinion states the case.
    Mr. B. C. Taliaferro, for the plaintiff in error.
    
      Mr. John 0. Pepper and Messrs. G-ounr & Chandler, for the defendant in error.
   Mr. Chief Justice Breese

delivered the opinion of the Court:

This was a case on appeal from a justice of the peace to the circuit court of Mercer county, in which William Pardee recovered a judgment against Cyrus Low for twenty-eight dollars and seventy-five cents, for a corn planter sold and delivered by Pardee to Low. It appears the contract was, if Low did not like the planter he was to return it and nothing was to be paid. The claim was, that he did not return it, and the court instructed the jury for the plaintiff, that if they believed, from the evidence, that the defendant took the machine and agreed to return it if it did not raise more corn than any other planter, it was the duty of the defendant, so soon as he tested it, to return it, and if he retained it an unreasonable time he was liable for the value.

This instruction, and another one of the same import, were doubtless correct law; but it was distinctly proved on the trial, that the plaintiff, by his agent, had dispensed with the return of the machine, he preferring it should remain in the possession of the defendant.

The verdict should have been set aside as contrary to the evidence.' For these reasons the judgment is reversed and the cause remanded.

Judgment reversed.  