
    Pinney & Price vs. Hall.
    Where a note was given for a fanning mill, conditioned, that if the maker was not suited with it, he should return the same in a given time to the payees, they, in that event, to furnish him with a new mill: held, that the maker having returned the mill within the time, and refused to accept a new one, though offered him hy the payees, he was entitled to no abatement from the amount of the note by reason of latent defects in the mill.
    On error from the Oswego C. P. Pinney and Price sued Hall before a justice, and declared upon a note as follows: a New improved Fanning Mill. Town of Scriba, June 24th, 1836. On the first day of January next, for value received, I promise to pay Pinney & Price or order, twenty-eight dollars with use, at Fitch’s store in Central Square, cash price. This note was given for a fanning mill. If the signer is not suited with the mill, he is to return the same to Pinney & Price’s factory in Central Square, by the first day of December next, and they are to furnish him a new mill at that place, provided the signer takes good care of the ínill and keeps the same in his own bam. If this is one half paid when due, a credit of the other half is to be given one year longer. David Hall.” On issue joined, the justice rendered a judgment for the plaintiffs for the amount of the note and interest, of $29,30. The defendant appealed to the C. P. On the trial in that court it appeared that the fanning mill was a poor one, and that the defendant returned it to the plaintiffs’ factory, at Central Square, within the time mentioned in the note. The plaintiffs then had more than twenty mills in the factory, and offered the defendant his pick among them, but he declined taking another. The plaintiffs refused to give up the note—insisting that the bargain was, that the. defendant should take another mill if dissatisfied with the first.
    The court charged the jury, among other things, that there might be a question from the testimony whether the plaintiffs did not refuse to take back the mill—that if they had refused to take it back or furnish a new one, the property of the mill remained in the defendant; and that the defendant was entitled to an abatement in the price, if there were any misrepresentations, or latent defects not made known. The plaintiffs excepted. The plaintiffs asked the court to charge, that if the plaintiffs offered the defendant a new mill on the return of the old one, the defendant was not entitled to any abatement in the price of the mill. The court refused so to charge, and the plaintiffs excepted. Verdict for plaintiffs, $6. The damages having been reduced more than $10, the court awarded costs to the defendant, which were taxed at $54,30. Judgment was rendered that the defendant have execution for the balance, after deducting the verdict of $6. The plaintiffs now bring error.
    
      Grant & Allen, for plaintiffs in error.
    
      Hulbert & Casey, for defendant in error.
   By the Court, Bronson, J.

It is quite clear upon the evidence, that the plaintiffs were ready and willing to take back the first mill, and furnish the defendant with another in pursuance of the contract. They had more than twenty mills in the factory at the time, and there was no proof that they were not good ones. The defendant declined taking another at that time, and said he would call at a future dtiy. There was no evidence which made it proper to submit to the jury the question, whether the plaintiffs had not refused to take back the first, or to furnish the defendant with another mill.

The parties provided by the contract what should be done, in, case the defendant should be dissatisfied with the mill. He was to return it and take another. That was his remedy. He had no right to refuse taking another mill, and then insist on an abatement in the price agreed to be paid for the first.

Judgment reversed.  