Page:Federal Reporter, 1st Series, Volume 9.djvu/307

 292 FEDERAL REPORTER. �and the important question arises whetlier it waB sent there for trial only, or for trial and sale. Afflick, one of the firin, testified that it was shipped to them on terms, as they understood, that they were to buy it if the machine worked satisfactorily ; if net, complainant was to pay his own expenses and take the machine back. They kept it, apparently, two or three weeks, and while there it was used experi- mentally, to see -whether it would work or not. It seems that com- plainant went there for the purpose of testing it, to see if it would run ; but it was finally shipped back to Adrian, not being satisfac- tory to the firm. It is stipulated that Jamispn, the other member of the firm, would testify substantially as Afiiiek did upon this point. The only other direct testimony is that of the complainant himself, who says he sent it there for an experimental machine, to see whether he could get it to do good work. His testimony upon this point is substantially as follows : �"Question. Did you not send it away on trial, to be sold or to be bought by Jamison & Afflick if they liked it? Answer. Not until after it was tested. Q. Didn't you send it there on trial, to be bouglit by Jamison & Afflick if they liked it? A. I did not. Q. How did you coma to send it up to them? A. He came down to see me for repairs on his wheel machine, and we got to talking about machines, and I told him : ' Jamison, if you are a mind to, I will send you that machine awhile to try it, and if it works all right it will be all right.' Q. What do you mean by being 'all right;' that the machine would be all right ? 4. So it would work all right. Q. How do you mean, work all right? What would be all right? A. What would be all right? Q. Tes, sir. A. It would be all right provided they wanted it. We didn't know whether he wanted it or not. He didn't say whether he wanted it or not. Q. If it worked all right were they to take it? A. They didn't say they would take it. C. They could take it ? JL. They could if they wanted to. Q. Didn't you try to sell It to them ? A. No, sir; I didn't try to sell it to them. I flrst wanted to get the machine so I could do something with it, and until I knew it was so I could put it ont." �This testimony is, evidently, very evasive, but it leaves a strong impression upon my mind that in reality the machine was sent to Chesterton for sale if satisfactory, There is no reason shown why complainant sent it to a distant place simply for trial, particularly as it appears that he tried the same machine at Condit's yard, in Adrian, before sending it to Chesterton. This trial seems to have proved a failure, and the machine was afterwards put in better con- dition, and might as well been tried in Adrian again, if all that com- plainant desired was to experiment with it. I think this is the only direct testimony upon the point. The witness Galloway testifies that he heard the matter talked over between complainant and the one ��� �