
    The American Gas Control Co., Appellant, v. Feodor Von Raitz, Respondent.
    (Supreme Court, Appellate Term,
    July, 1897.)
    Contract — Test of a machine — “ Demonstration.”
    Where a person takes a gas governor upon condition that it makes a certain saving, “ to be demonstrated ” by a test of burners “ with and without governor,” the purchaser is entitled to a test witnessed by himself or some representative; and it cannot be said that a fair test is made where the vendor, after a test made with the gas governor in operation, refuses to remove, the gas governor and subsequently makes no further test.
    Appeal from judgment rendered by the- justice of the Third Judicial District Court in favor of the defendant.
    Hastings & Gleason, for appellant.
    Lewis M. White, for respondent.
   Bischoee, J.

The plaintiff installed a gaa governor in the defendant’s dwelling-house, for which the defendant agreed to pay the sum of $25, provided that the machine should effect a saving of from 20 to 40 per cent, of the gas consumed, this saving “ to be demonstrated by an actual time test of the saíne burners, consuming an equal number of cubic feet of gas with and without governor, under full street pressure. Failing to record above saving, the machine to be removed free of expense.”

The defendant refused to accept the machine and it was removed by the plaintiff who brought this action for the agreed price, claiming that the refusal to accept was not justified and that the apparatus had fulfilled the requirements upon such a test as the agreement called for.

The sole point at issue was whether or not the machine had been subjected to a trial and had given the required results, and but one witness was called by each side, the plaintiff’s inspecting agent, and the defendant himself.

The plaintiff’s agent' testified that he called at the defendant’s residence and made two tests of the machine in the presence of a servant of the defendant, designated by the latter to witness the test; that the outcome was satisfactory, showing a saving of gas of 25 to 28 per cent.; and that the result was noted upon slips signed by the 'defendant’s servant.

On the other hand the defendant’s testimony was that the plaintiff’s agent made a trial of the gas consumed with the governor in operation hut refused to remove the machine from the gas pipe and thus make a comparative test satisfactory to defendant, who .did not feel assured that a fair tést would t e made otherwise. ■

The plaintiff’s agent wished to recorl the result for comparison after turning off the gas from the machine but the defendant’s objection was that he could not be sure of the test unless the machine was removed, since it might have concealed some trick or device.” He testified that after refusing, to remove the machine the plaintiff’s agent made no test of it,' and, further,, that he had not authorized his servant to witness any trial- of the apparatus.

Here there was simply a conflict of evidence; as to whether or not a test was made and the justice was led to credit the defendant and thus to determine the issue in his favor, a well-authorized result which -it is not for this court to disturb.

It is claimed by the appellant that the agreement did not entitle the defendant to the presence of a witness at the test, and that even if the servant was not authorized to witness the trial testified by the' agent to have been made, the defendant was bound by the result in any event.

The defendant’s testimony was indeed to the eff ect that there had been- no trial at all,- but, as we construe the agreement, he was certainly not concluded by a test of which he, or some person delegated by him, was not an observer. The contract provided-that the saving of gas should be “ demonstrated ” by the test, and the reasonable interpretation of this is that the demonstration should be extended to the consumer of the gas and not be limited in its scope to the secret edification of the agent.

Whether the defendant’s request, thkt the machine should be removed for the purposes of the test vras reasonable or not it is unnecessary to determine, since the testimony was that- the agent refused to make the test at -that time, and it does not appear that the refusal was called for by the defendant’s attitude.

It is contended, that the defendant’s testimony was vague and ambiguous, but to us it seems sufficiently clear and so, apparently, it seemed to counsel upon the trial, since the witness was subjected to no cross-examination.

The matter was simply one of fact, presenting no ground for our disapproving the justice’s conclusion, and the judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.  