Springfield Engine Stop Co. v. Sharp

• Decision Date: 21 October 1903
• Citation: 184 Mass. 266,68 N.E. 224
• Parties: SPRINGFIELD ENGINE STOP CO. v. SHARP et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

184 Mass. 266

68 N.E. 224

SPRINGFIELD ENGINE STOP CO. v. SHARP et al.

Supreme Judicial Court of Massachusetts, Hampden.

October 21, 1903

COUNSEL

Jas L. Doherty and W. G. Brownson, for plaintiff.

Spellman & Spellman, for defendants.

LORING J.

This was an action for the price of an engine stop. A verdict for the defendants was ordered by the court, and the case is here on an exception to that ruling.

It appeared that the plaintiff placed an engine stop on an engine of the defendants for a 30 days' trial, in competition with another engine stop. The price was to be $200, and the stop was to be taken off by the plaintiff if the defendants did not like the stop. The contract was by word of mouth, and nothing was said as to what should be done at the end of the 30 days if the defendants decided not to take the stop. The stop was installed and turned on for use on the afternoon of May 2d. On June 1st the defendants wrote asking for another 30 days' trial, and on June 8th the plaintiff wrote that it would extend the time of trial for 30 days, as requested. On the morning of Monday, July 3d, the defendants wrote to the plaintiff that after 60 days' trial they had determined to accept the other stop, and that the plaintiff's machine could be taken out at its convenience. The defendants' witness testified that 'the plaintiff's stop was never used after the 3d day of July,' and there was no other evidence on this point. Even if fractions of a day are ordinarily to be considered in computing the 30 days in such a case as this, there was evidence warranting a finding that the extension continued until, but not including, July 1st. The question whether the extension expired on June 30th or July 1st was a question of fact for the jury.

The plaintiff's first contention is that failure to give notice until July 3d, and the use of the stop on Saturday July 1st, and Monday, July 3d, is conclusive of the defendants' liability, and in support of that contention it relies on Prairie Farmer Co. v. Taylor, 69 Ill 440. That, also, was a case where a 30 days' trial was to be made of a machine, but in that case the machine was used for nearly a year without notice of an election, and what is said there must to taken to have had reference to the facts then before the court. The true rule is laid down in the other cases cited by the plaintiff, and it is this: The party to the contract who is to make the trial has the full period agreed upon for the trial, and, in the absence of any stipulation on the point, he has a reasonable time after the expiration of it to signify his election. See Elphick v. Barnes, 5 C. P. D. 321; Spickler v. Marsh, 36 Md. 222; Kahn v. Klabunde, 50 Wis. 235, 6 N.W. 888; Waters Heater Co. v. Mansfield, 48 Vt. 378.

The plaintiff's next contention is that it had a right to go to the jury on the use made on Saturday and on Monday as evidence of the defendants' election to take the stop. The retention of the stop after Friday, June 30th, apart from the use of it, had no significance. This was not the case of a sale or return. By the terms of the agreement, the plaintiff was...