Page:Federal Reporter, 1st Series, Volume 6.djvu/872

 860 FEDERAL REPORTER. �cause of action set out in the petition ; and, nnder this plea, he may also show a partial or total failure of consideration, 2 Greenl. onEv. 135, 136 ; Thornton v, Wynn, 12 Wheat. 183; Mason v. Eldred, 6 Wall. 231; Cutter v. Powell, supra. �It is claimed by the parties in this case that it is the duty of the court to construe the contract in this case. That, un- doubtedly, would be so if the contract were in writing; but it is admitted by both parties that the contract between the agent and defendants was not reduced to writing, and th» letterswhich af fcerwards passed between plaintifs and defend- ants was simply the statements of each as to what they understood the terms of the contract to be. True, in the last letter of the plaintifs they say what they are willing to do, but wind up by saying they will abide by the contract as made by their agent, and to this letter the defendants, by letter, give their assent. So it is a question of fact for the jury to determine, from ail the evidence in the case, what was the contract as entered int'o by the plaintiffs' agents and defendants. If the jury are satisfied, from the evidence, that the contract was that the plaintiffs were to furnish the soda apparatus and tumbler-washer, fixtures, and syrups, and that the defendants should receive from its use five dol. lars per day untU the first of June, and it was to be equal in its workings to that of any other manufacture of like char- acter, and they find from the evidence that it was of that. character and yielded that amount, then the plaintiffs are entitled to your verdict for the contract priee. Defendants claim, however, that the contract was that it was to yield them five dolars per day, and was to be entirely satisfactory to them to the first of June. If the plaintiffs, without the defendants having an opportunity of examination, agreed to supply them with or manufacture for them a soda apparatus, the law implies that they undertook that it should reasonably answer the purpose for which it was intended by the parties. Benj. on Sales, 625, 643. And if, by reason of the charac- ter of the materials or the manner of its construction, it did not answer the purposes of a soda apparatus of that character, and the defendants by the contract had until the first day of ��� �