majority"> Mr. Justice Turnkey

delivered the opinion of the court, February 26th, 1886.

Bullock contracted to furnish Cleaver certain machinery for a mill and put the same in operation, the price to be paid in three instalments, the last “when machinery has been run thirty days and proves satisfactory.” They stipulated that the machinery should be put in under the personal supervision of Mr. Justice J. Hendrickson who was the inventor of Hendrickson’s three-roll gradual reduction mill. The machinery was put in the mill under Hendrickson’s supervision, and the first two instalments of the price were paid. When completed, October 21st, 1882, the mill was set running under the management of said Hendrickson and Cleaver’s miller, was tried four or five days, and “ during that time between one hundred and one hundred and fifty bushels of wheat were used, and fifty per centum of this was lost or wasted on account of the failure of the machinery to perform its work.” “The wheat wasted in the trial given of the machinery, was more than the usual total loss on the trial of a new mill.” “The principal loss was not in the quality of the flour but in the production of too much bran, a defect which could only be remedied, if at all, by the adjustment of the break-roll alone and not by the numerous changes and adjustments in the whole machinery, sometimes necessary to bring the mill up to its full capacity of high grade flour.”

After said trial Hendrickson admitted he could do no more. Bullock demanded thirty days for testing the machinery, said it could not be properly tested in less time, and alleged that period was allowed him by the contract. Cleaver refused his demand and offered to allow a trial of one day and the use of one hundred bushels of wheat, which was rejected “ on the ground that a day would be wholly insufficient, and but one thirtieth of wheat would be requisite.” Just there offers to put the machinery in working condition ended. Soon after Bullock declined to take out the machinery, and Cleaver took it out and shipped it to him.

Some other facts were found by the Referee proper to be considered for a right understanding of the contract and Acts of the parties, but none which changes the terms of the written agreement. Although Cleaver had thirty days after the machinery was ready to start, to ascertain it' it would work satisfactorily, good faith required that Bullock should have reasonable time and opportunity to make proper tests and *450remedy defects, if any; arid a refusal of such opportunity would be strong evidence that Cleaver believed the contract had been substantially performed.

The inventor of Hendrickson’s three-roll gradual reduction mill was to supervise the work, and he did. In the trial he made, more wheat was wasted than the usual loss on the new mill. For five days after the inventor had pronounced the mill ready to use, he was endeavoring to discover and remedy its faults, and failing, he quit. Then the plaintiff insisted that not less than thirty days more were requisite, notwithstanding the fact that the principal loss was in the production of too much bran which defect could only be remedied, if at all, by adjustment of the break-roll alone, and not by numerous changes and adjustments in the whole machinery. He refused to take a day for testing and trial. Had the plaintiff believed the mill was not worthless and was offering in good faith to discover and remedy defects he could have taken the day and in that time probabty have found the defect, if not applied the remedy. There was no reason why the defendant should submit to further loss of time and waste of wheat.

This case is unlike Albert & Co. v. Frick & Co., 1 Pennypacker, 132. Frick sold to Albert an engine and boiler warranted to be of best work and material and to perform satisfactorily. Albert received the machinery, retained and used it, and the jury found that Frick substantially performed the contract; but there were some slight defects. The court charged that if a party contracts to do work or to furnish machinery or other things to another and performs substantially, but fails in some slight particulars, the other party who receives the benefit and enjoj's the fruits of such performance is liable for the price, deducting what loss or damage he may have sustained by the deviations from the contract. That instruction accords with the well settled rule. And it was remarked, “ If the defendants ascertained that the engine was not what was contracted for, they might' have rescinded the contract, they might have refused to keep the engine on the ground that it was not according to warranty, and then they might look to the plaintiff for the damages for not furnishing one according to the contract.”

Here the defendant within proper time notified the plaintiff to take away the machinery, and on his neglect or refusal to take it promptly, sent it to him. ‘ The fact is notin the case that Hendrickson’s three-roll gradual reduction mill could have been made to work successfully, but instead, it had never been tried before nor was it used afterwards. We think it clear that upon 'the facts found by the Referee the plaintiff is not entitled -to .-recover the unpaid instalment.

*451The Referee found that the plaintiff did work and labor for the defendant beyond refitting the mill under the contract, to value of $267.57, and that he was entitled to $175 because of the purchase of the Dawson roll. Also that the defendant advanced moneys for the plaintiff amounting to $294.24. There is no dispute respecting these items.

Judgment reversed, and judgment is now entered for the plaintiff, Charles K. Bullock, for $162.34 with interest from July 17th, 1884.

[Note. — The object of a “break” machine, in the “gradual reduction ” system of milling, is to give the wheat-berry its first “ cracking or breaking ” after the berry leaves the cleaning machinery. The “stuff” or “ feed ” is then taken through “spouts ” and “ conveyer's ” to the “ bolts ” where the “ separations ” are made and then returned sometimes again to the “ break-rolls,” to be re-cracked, or carried to other parts of the mill, such as “bran-rolls” ; then to the “purifiers,” where the solid and hard inner part of the berry is separated from other parts of the berry, making what are called “ middlings.” The “ middlings ” are ground on rolls and make the best or “ patent flour,” this being the object of the “ gradual reduction system,” of milling as distinguished from the old or burr-stone system. In the “gradual reduction system” of milling different grades of flour are being made during the process of separating the “middlings” or best portions of the berry, which, when ground, make “patent flour.”]

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