(after stating the facts). This court has held that where a manufacturer offers his goods for sale, and his vendee has no opportunity of inspection, the vendee necessarily relies upon his knowledge of his own manufacture ; and that in such case the law implies a warranty that the article shall be merchantable and reasonably fit for the purpose for which it was intended. S. F. Bowser & Co. v. Kilgore, 100 Ark. 17, and Curtis & Co. Manufacturing Co. v. Williams, 48 Ark. 325. This principle of law is recognized by both parties in their briefs.
It is insisted, however, by counsel for the plaintiff-that it has no application to the facts of this case. He insists that the controversy arises in this case because of the different views held by the plaintiff and defendant as to the intended purpose of the machinery in controversy. He claims that it was never intended or represented by *44the plaintiff that the machine of itself would separate the bolls from the cotton, but that it only represented that it would break the bolls so that the defendant’s huller gin would make the separation. He further claims that the machine would break up the bolls as represented by the plaintiff when the engine was run at the high rate of speed required by the specifications. We do not think that the testimony ;as to these matters is undisputed as claimed. The manager of the defendant’s gin and other machinery, who had had twenty-five years’ experience in running machinery, testified that the engine would run at the rate of speed provided for in the specifications sent out by the plaintiff for installing and operating the machinery in question; that in testing the machinery he speeded up the engine to the.required speed, and that when this was done it would choke up by the time five hundred pounds of seed cotton has passed through it. He further testified that the machinery was never operated two hours at a time until it would choke up. The case was submitted to the jury under the principles of law announced above and we think the testimony of the defendant just stated and referred to was sufficient to take the case to the jury.
It is next insisted that the judgment should be reversed because the defendant has never returned or offered to return the machinery involved in this controversy. The machinery was operated for some time in an effort to test its fitness for the purpose for which it was sold by the plaintiff to the defendant. A representative of the plaintiff went to the defendant’s gin for the purpose of seeing if the machinery was properly installed and properly operated. After doing this the plaintiff wrote the defendant a letter telling him that it was not going to waste any more time or money on the matter and demanded prompt payment of the note. The law never requires a vain thing to be done. From this and other facts and circumstances adduced in evidence it is manifest that the plaintiff would not have accepted a return of the machinery if the defendant had offered to re*45turn it. Under such circumstances the defendant was excused from offering to return the machinery. Read’s Drug Store v. Hessig-Ellis Drug Co., 93 Ark. 497.
It is also insisted that plaintiff is certainly entitled to recover upon the open account which is for the purchase price of the fan shipped by it to the defendant. This fan was installed by the plaintiff’s agent in an effort to successfully operate the machinery sold by plaintiff to the defendant. It was thought that the machinery could be successfully operated if a larger fan was installed. Plaintiff’s agent installed the fan in an effort to successfully operate the machinery, but it was not purchased by the defendant. If the defendant had kept the machinery and the fan with it, plaintiff’s contention would be sound; but the defendant repudiated the whole contract and so notified the plaintiff. The plaintiff contended that the contract was binding upon the defendant, and elected to hold him for the purchase price of the machinery. As above stated, under these circumstances it was not incumbent upon the defendant to offer to return the machinery including the fan to the plaintiff. Of course, it follows from the views expressed in this opinion that the cotton separator and the fan are the property of the plaintiff, and that it would undoubtedly have the right to take possession of them. That matter, however, is not an issue in the present case, and no order can be properly made here for the restoration of the plaintiff’s property to him. This, would be a proper subject matter for litigation in another case if the defendant should refuse to restore the property to the plaintiff upon demand therefor.
Finally, it is insisted that the court erred in instructing the jury as follows:
“You are instructed, gentlemen of the jury, that if you find from the evidence that the failure of the machine to perform the use and service intended was due to the maimer and fault of installation by the defendant, his agent, or servants, or the failure on the part of the defendant to provide necessary .speed with which to operate *46the machine, then your verdict should be for the plaintiff.”
The error complained of is that the instruction is on the weight of the evidence in that it assumes as a fact that the machinery failed to perform the service for which it was intended. There was no error in this respect. The plaintiff in a letter written to the defendant after the machinery had been in.the defendant’s possession and tested by him admitted that the machinery would not perform the work it was intended for, but insisted that this was due to the fault of the operator. The plaintiff made two claims in regard to the matter. One was that the defendant did not understand for what use the machinery was intended, and in the second place that the defendant did not run his engine at a sufficiently high rate of speed to properly operate the machinery. Under these circumstances there was no error in giving the instruction under consideration because the assumption caused no prejudice to the rights of the plaintiff.
There being no prejudicial error in the record, the judgment will be affirmed.