This was a suit brought upon two promissory notes given in payment for a mowing machine, and the defense set up was that the machine would not work as represented and was worthless. Verdict and judgment for defendants.
The principal error complained of by appellant is the refusal by the court to permit the warranty printed upon the back of the order given by appellees to appellant for the machine, to be read to the jury.
*602The order was as follows:
“C. Aultman & Co., Canton, Ohio.
“ Tolono, Illinois, June 26, 1885.
“ The undersigned has this day bought of your agent, W. H. Yanaslen, at Tolono, Illinois, one Buckeye Dropper and Mower, combined, to be delivered, if possible, at (insert plain and full description of machine wanted) Tolono, on the 30th day of June, 1885, where he agrees to receive the same and pay freight from Canton, and at the same time pay to your order one hundred and fifteen dollars as follows, cash, §...... and notes with approved security, bearing interest at seven per cent, as follows:
“ One for §38.35, due Jan. 1,1886; one for §38.35, due Oct. I, 1886; one for §38.30, due Jan. 1, 1887; one for §...... due......188 . The machine above ordered to be subject to warranty printed on back of this order.
“ Henry Ohl.
“Post office, Pesotum. County, Champaign, State of Illinois.”
Copy of the warranty on the back of the order refused by the court to go to the jury as evidence:
“Warranty.
“ The machine herewith ordered is warranted, with proper usage and management, to work equal to or better than any first class machine made for doing the same work. If, in one day’s trial, it shall not perform as above warranty provides, the purchaser agrees to notify C. Aultman & Co., or the agent within named, and allow them time to get to the machine and remedy the defect, if there be any (if it be of such a nature that a remedy can not be suggested by letter), the purchaser rendering necessary and friendly assistance. If the machine can not be made to fill the warranty, it shall be returned by the purchase;" to the place where received. More than one day’s use of said machine shall be considered an acceptance of it, and this warranty shall not be binding if the machine shall be delivered before settlement shall have been nmde for same, ■ as stipulated.”
*603Tlie court, we think, erred in not permitting the warranty to go to the jury, that they might determine from ail the evidence in the case whether it formed a part of the contract between the parties or not. If any misrepresentations or concealments were made at the time the order was signed, by appellants or their agents, it might be that the jury would be authorized to say it was no part of the contract signed by appellee, but it, together with all the circumstances attending the execution of the order, should have gone to the jury.
But we do not think this erroneous ruling of the court worked any substantial wrong to appellants, for the reason that appellee did, within two or three days after receiving the machine, report to appellant’s agent the fact that the machine would not work, and from that time on, he kept it at appellant’s request, and there was therefore upon the appellant a waiver of the terms contained in the warranty.
The judgment of the County Court will be affirmed.
Judgment affirmed.