¶1The opinion of the court was delivered by
¶2The case converges to this point. The machine was defective, and upon trial was found not to answer the purpose for which it was made. Freyman, the maker said he would take it home and mend it. He did so, and sent it back. It was never returned to him, and he was never notified that it did not work well.
¶3The court said that Frankenfield ought to have returned the *58machine, or at least notified Ereyman that it did not work well, and as he did neither, he ought to pay for the machine, deducting what was reasonable for the deficiency.
¶4We think the court were right. Erankenfield has no lawful title to keep the machine, and the price.. The last contract was that Ereyman would take home the machine and amend the defect. This agreement waived an exact performance of the first. He did so, and as he thought in good faith, and took it back. Good faith and honesty required that Erankenfield should have informed the maker that it was still defective. As he did not do so, the other had a right to presume that he accepted it, and was satisfied. He brings his suit for the price, and then for the first time he is informed that the machine does not work well. As Erankenfield retained it, he made it his own, not objecting or giving notice to the other party of the defect. He ought to pay what it is worth, with the defect, if any; and the jimy pronounced on that part of the case. We see no error.
¶5Judgment affirmed.