858 FEDERAL REPORTKR. �claim also that there was a special contract in relation to the apparatus, but say that the terms of the contract were that the piaintiff should deliver to them the apparatus, and set it up ready for use; that theywere to have.until the first of June to try it ; and that if it did not yield an average ,of five dollars per day, or if it were not perfectly satisfactory to them in its workings, they were not to take it. Defendants admit that the amount yielded by the apparatus was above the Bum agreed upon, but they say that the apparatus was de- feetive in its materials and construction, and in its working operations, and wholly unsatisfactory to them, and that they received it and it was put up by plaintifife for them about the twenty-sixth of April; that, finding it def active in the particulars specified, they notified the plaintiEfs thereof ; and that finally, on the twenty-ninth day of May, they notified the piaintiff B that they would not purchase the same, and re- quested them to take it away, which they failed to do; that on the first day of June, when plaintiffs' agent called upon them and demanded payment, they refused to pay, and notified the agent to remove the apparatus, which he refused to do; that they kept it in use, subject to the plaintiEfs' order, until the twenty-third day of June, when they took it down and notified the plaintiffs thereof; that plaintiffs failing to take it �away, that afterwards, on the of August,they boxed up �in good order and shipped in good condition the apparatus to the plaintiffs at Boston, where they received and still hold the same. �The plaintiffs admit that the apparatus was received at their establishment in Boston about the first of September, but say it was not received and kept by them as their own propertj ; that it was, when received, in a damaged condition, and not worth over $300 ; and that on the twenty-sixth of October they wrote the defendants that they had received and held it as de- fendants' property The parties differ as to the terms of the agreement, but both admit that the goods were delivered by the plaintiffs and received by the defendants under a special contract. And the defendants claim that whetherthe terms of the special agreement be as the plaintiffs claim or as they ��� �
