This action was brought by plaintiffs in error against defendants upon a note given by them for a “ Eussell ” reaper and mower in 1873. A large amount of immaterial testimony was introduced on the trial; but it is only necessary to refer to the following facts in the case.

James Eenlon, of Council Bluffs, was the general *468agent for the plaintiffs in Nebraska, and he appointed C. F. Mewis and Brother, at Wisner, Nebraska, to sell machines. The agents, Mewis and Brother, sold a machine to the defendants, for which the note in suit was given in part payment. It worked badly and frequently broke down. One of these agents was present on the second day the defendants tried to use it, and he attended several times afterwards, endeavoring to put the machine in working order, but he failed to succeed, and after a few days trial, without success, he told the defendants to return the machine. They did return it, and it was accepted by the agents, who then loaned to the defendants a Johnson harvester to cut their grain that season. The machine was warranted, but W. Wohler, one of the defendants, testifies that the warranty given to defendants was burnt; and August Mewis, one of the agents, testifies that the warranty was printed in a pamphlet of Russell & Co., and that the machine was warranted to do good work, and if it failed in this respect it should be replaced by another, or be taken back and the money or notes be refunded. He further testified that by letter he corresponded with Russell & Co. and James Fenlon in regard to the machine the defendants returned, and received replies from them, and that Russell & Co., in their reply, stated they would send a man from their shop to put the machine in order, but did not do so.

The plaintiffs’ counsel objected to this parol evidence in respect to these letters. The proofs, however, show that these letters were produced by the agent as a witness in the case of Russell & Co. v. Higgondon before the probate court, and were left in that court, and that he never saw them afterwards. E. N. Sweet, the probate judge at the time, also testifies that Mewis produced the letters as a witness in that trial, and that they were not returned to him. Sweet further says that he has examined the files in the case of Russell & Co. v. *469Higgondon, and conld not find tbe letters. Under tbe rule laid down in Minor v. Tillotson, 7 Peters, 101, this was sufficient proof to let in the secondary evidence.

We think that, under the circumstances shown by the facts in this case, the failure of the plaintiffs to put the reaper in good working order, or to replace it with a good machine, must be taken as a full acquiescence on their part in the acts of their agents; and' that the return of the machine by the defendants, and its acceptance by the agents, was a rescission of the sale to the defendants, and thereupon they became entitled to the return of their notes. And as this conclusion is decisive of the case, it is unnecessary to discuss other questions raised upon the argument.

The judgment of the court below must be

Affirmed.