it, but the agent refused to receive it. On the same day appellant
again notified respondent that he had returned the property, and
left it near respondent’s warehouse, subject to respondent's disposal. After said date neither party interfered with the property
in any manner. Upon these facts the learned trial court found,
as a conclusion of law, that appellent, by keeping and using said
machine until October 7th, 1890, without notice to respondent of
any defects, was precluded from setting up a breach of warranty
as to the condition of the boiler at the time of the purchase. If this
conclusion is correct, the judgement must be affirmed; otherwise,
reversed.
No question is raised, it will be noticed, upon the right of the buyer to return the property unless such right had been waived. Appellant was precluded from the defense of breach of warranty solely by reason of his conduct in using the property for such length of time without notice of defects. Whether this conclusion was based upon the express terms of the warranty, or upon general principles of law pertaining to the subject, we are not definitely informed. The learned counsel for respondent, in his brief, puts his construction upon the warranty, and prints it as follows: “That if, at the time of first starting, it is found by the buyer, not to be as represented, immediate notice, by telegraph or mail, shall be given to the seller at Stillwater, Minn. * * * The use of the machinery after such trial shall be conclusive evidence of satisfaction and fulfillment of the warranty.” Under that construction the law is undoubtedly with respondent, as we regard it well settled that where an express warranty is upon condition, or when some duty is devolved upon the purchaser by the terms of the warranty, such condition must be fulfilled, or such duty performed, before advantage can be taken of any breach of such warranty. Michols v. Knowles, 31 Minn. 489; 18 N. W. Rep. 413; King v. Towsley, 64 Ia. 75; 19 N. W. Rep. 859; Russell v. Murdock, 79 la. 101; 44 N. W. Rep. 237; Worden v. Harvester Co., 11 Neb. 116; 7 N. W. Rep. 756; Threshing Machine Co., v. Vennum, (Dak.) 23 N. W. Rep. 563. But will the warranty bear that construction? We
