Defendant ordered a binder of plaintiff. The machine was delivered to defendant, at Hillsdale, in June. On July 3, plaintiffs son and an agent of the Warder,. Bushnell & Glessner Co. set up and started the machine,, and it failed to work. July 4, plaintiff and the agent, went to defendants, and tried the machine, but failed to-make it work. July 5, plaintiff and two other of the-*376■company’s agents went to defendant’s again, and worked with the machine all day, defendant working with them •during the time. After the close of the day’s work, plaintiff demanded settlement for the machine, claiming that it worked as warranted. Defendant refused to pay, or give ■a note, because the machine did not work. July 6, ■defendant, in the absence of any of the conrpany’s agents, tried the machine again, working with it during the day, and claims that it did not fulfill the warranty. On the 7th he went to Hillsdale, saw the plaintiff, and told him that the machine did not fulfill the warranty. Plaintiff then said: “It is your machine; you bought it, and have to- pay for it.” On the same day defendant returned the machine to plaintiff, at Hillsdale.

There is a clause in the warranty of the machine as follows:.

“If the said machine does not perform as above [warranted], immediate notice must be given to the Warder, Bushnell & Glessner Co., Chicago, Ill., or to their agent from whom the machine was bought, subject to a second trial in their presence, when, if the failure is found not to have arisen from any defect in the machine, it shall be kept by the purchaser, and continued use shall be considered conclusive proof that it fills the warranty; but, if upon said second trial, said machine does not work as .above, it may be returned to us, and the money will be .refunded.”

Plaintiff brought suit for the value of the machine, and on the trial the facts were found substantially as above set forth, and the court directed a verdict in favor of the plaintiff.

The reason given by the trial judge for this ruling was that, inasmuch as the defendant again tried the machine, or used it, on July 6, he was estopped from relying upon the contract of warranty, and had., in fact, made the machine his own. The court arrived at this conclusion from the interpretation he gave the words in the contract, “ continued use shall be considered conclusive proof that it *377fills the warranty.” The circumstances under which the defendant used the machine on July G would not, however, estop him from claiming that the warranty had not been fulfilled. If he had used the machine without making any complaint, undoubtedly he would have made the machine his own, or at least would not be permitted to say that it did not do good work and was not as represented; but the mere fact that he used it July 6 was not such a continuous use as to estop him from making the claim. The agents of the machine company had tried for two days to make it work, and, according to defendant’s claim, liad not succeeded. The defendant tried it again on July G, and claims that it did not do good work. If it did not fulfill the warranty, by the terms of the contract the defendant was not bound to keep it. If there was any dispute as to whether it did or did not, it was a question of fact for the jury. If it did not fulfill the warranty, the court should have directed the verdict in favor of the defendant.

The contract of warranty was made by the Warder, Buslmell & G-lessner Co. of Chicago. The plaintiff claims to recover the value of the machine, as sold by him, and at the same time it is conceded that the warranty is from the company, which he represents as agent. Under this contract which defendant had- from the company, payments were to be made to the company direct, and not to the plaintiff. No claim was made on the trial that plaintiff could recover except under the contract with the company. It cannot be said that the order and warranty constituted a contract with the plaintiff. He was dealing with defendant as the agent of the company, and as such agent issued the written warranty, which the company was bound to fulfill. It was not the personal guaranty of the plaintiff, but of the company. Yet the plaintiff did not aver in his declaration, or prove on the trial, any assignment of the *378contract. In order to recover in his own name nnder this contract, the plaintiff should have averred and proved an assignment of the contract.

Judgment reversed, and new trial ordered.

I concur in the result, on the ground' that it was a question for the jury as to whether the-defendant continued the use of the machine with the intention of accepting it, as answering to the terms of the warranty.