
    CHARLES H. MOORE, Administrator, etc., Respondent, v. ALBERT H. PICKARD, Appellant.
    
      Conditional sale—Machine to be tried.
    
    The plaintiff’s intestate sold and delivered to the defendant a Buckeye reaper and mower, and it was agreed, that if the machine did not work well, the defendant need not keep or pay for it. The machine did not work as a reaper, but was a good mower. The defendant used the machine during the season of 1868, and had it repaired by plaintiff’s intestate in the spring of 1869, upon the agreement that, if the machine did not work well, the defendant need not keep it. Defendant used the machine during the season of 1869, and nearly wore out the mowing part, which worked well after it was repaired in 1869. In an action brought by the plaintiff, the referee directed judgment in his favor, for the value of the machine as a mower. Held, that the defendant .was only entitled to try the machine for a reasonable time, but that such reasonable time was exceeded by the defendant, and that he was clearly liable for the mower; and that the referee might have presumed, from his retention of the machine for so long a time, that he had accepted the whole machine.
    
      Appeal from a judgment in favor of plaintiff!, entered on the report of a referee.
    
      Thomas M. Webster, for the appellant.
    
      E. Porter, for the respondent.
   Opinion by Smith, J.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed.  