The plaintiff delivered a steam engine of a new and peculiar type to the defendant, who was to try it for thirty days, when, if it proved satisfactory and no notice of its rejection had been given to the plaintiff, it was to be paid for at an agreed price. For more than a year after its installation the engine failed to work efficiently, and the plaintiff altered and experimented with it to remedy its defects. During this period no demand for payment was made and no notice of nonacceptance was given. Finally the plaintiff requested the defendant to accept or reject the engine, and in reply the latter stated that he wanted it and would pay for it as soon as he had the money; and shortly thereafter paid the plaintiff $400 on account and promised to pay the balance soon. In an action upon the so-called common counts to recover the rest of the agreed price, it was held: — 1. That whatever rights the defendant might have had originally, under the conditional or tentative agreement, to reject the engine or to claim a reduction for its deficiencies, had been waived by his express acceptance of the engine and his promise to pay therefor. 2. That this promise must have referred to the agreed price, as no other amount had ever been suggested. 3. That under the count for the reasonable worth of the engine, the plaintiff might recover the unpaid portion of the agreed price.
PRENTICE, J.
Several questions are presented by the appeal and have been argued. A few simple considerations suffice to justify the action of the trial court and dispose of the case. The plaintiff may, under his complaint, recover an agreed price. Rules of Court, p. 42, § 131. The original contract of sale fixed an agreed price. The sale as finally consummated confirmed that price. The original contract of sale was a conditional one and did not accomplish a sale upon delivery. No title thereby passed. The defendant became only a bailee with an option to become owner. Hunt v. Wyman, 100 Mass. 198. The contract gave the defendant thirty days' trial of the engine and the right of nonacceptance within that time. This time limitation was by mutual consent of the parties extended, during the many months of experiment and alteration which ensued, and the agreement remained a tentative and open one. The plaintiff by his conduct impliedly, as he afterwards did expressly, waived any claim he might have had to a completed sale for the want of a notice of rejection within thirty days, and the defendant his right to reject the engine for unsatisfactory performance or other cause, as originally installed. Both parties were satisfied to postpone the final decision which was to determine whether the engine was to become the defendant's, or remain the plaintiff's property. The end of this period of experiment and trial ended in December, 1897, when the plaintiff put the defendant to his election to accept or reject. The defendant's decision then made and announced in his reply, that he wanted the engine and would pay for it as soon as he had the money, closed the transaction, consummated a sale, and fixed the defendant's liability to pay the originally-agreed price. Whatever right the defendant theretofore may have had to refuse to accept the engine, or to claim a reduction in the amount to be paid by reason of either his dissatisfaction with the machine, its deficiencies, worthlessness, failure to perform, any breach of warranty or other cause, he then waived by his express and unconditional acceptance and agreement to pay for it. This agreement to pay must have been one to pay the originally-specified price, which was the only amount ever suggested. This agreement was not without consideration. The title to the engine then acquired furnished that. Thus, and by his subsequent consistent conduct, the defendant bound himself as the trial court adjudged.