The opinion of the court was delivered by

This action was brought to recover the contract price of a mowing machine bought by the defendant of the plaintiff in 1862. The case was referred, and the questions here arise upon the report of the referee. The defendant resisted a recovery before the referee on the ground that the plaintiff, at the time of the sale, made representations as to the qualities of the machine that he knew to be false, and that the defendant relied upon these and was deceived thereby, in making the purchase.

It appears that the machine was one of the kind invented by McNamara, and when the plaintiff sold it to the defendant he represented that it was a “ good mower and did its work well.”

The referee reports that “ prior to 1858 one McNamara invented a mowing machine which in that year he commenced manufacturing at Hoosic, N. Y., and which soon after W'ent into use among .the farmers in Hoosic, Cambridge, and White Creek, in New York, and in Bennington, Vermont, and in the vicinity of those places, and that this mower when compared with other mowing machines at that time to be procured, was a good mower and did its work well. It continued in use at those places until about the year 1860, when other mowers which would do better work, with lighter draft, began to be introduced there and gradually superseded it, so that in the year 1862 it was nearly out of use. When compared with the other mowers at that time to be procured, with reference to their draft and the qual*609ity of their work, it was of no value for the purposes of a mower.” No question is made hut what the machine sold by the plaintiff to the defendant was a good machine of its kind. It had been used some, but that fact the defendant knew when he bought it, and took it as a “ second hand ” machine.

The referee does not find expressly that the representation that the plaintiff made as to the character of the machine was false, neither has he found facts from which that inference naturally arises, but rather the reverse. He finds that in 1860 machines of this kind were good mowers and did their work well.

There is nothing in the report to show why the machine was not just as good a mower and would not do just as good work in 1862 as in 1860. The inference is irresistible that such would be the fact, how then can it be said that the defendant’s representation was false ?

The referee finds that when compared with other machines of more modern invention, with reference to their draft and the quality of their work, this machine was of no value as a mower. But the defendant made no representation as to the value of the machine or the quality of its work as compared with other mowers. He did not represent that it was as good a machine, or would do as good work, as any other machine that had been invented.

The referee does not find that this machine was of no value, because it was not a good machine, and would not do good work, but because other machines had been invented that were better: this might affect its sale in the market but would not change the quality of its work. It would be worth just as much upon the farm as it ever was, and would aid just as much in securing a crop of grass as though no better machine had ever been invented, and if it was a valuable aid in 1860 it was just as valuable for the same purpose in 1862, whether it would sell for as much in market or not.

The referee has further found that when the defendant got the machine home, he had it tried and it did not work well or to'his satisfaction, but he does not find that the failure was the result of any defect in the machine. Quite likely the fault was in the operator.

No aid can be derived from any conclusions of the referee, as he did not decide the question, but referred the whole matter to the *610county court, who upon the facts found rendered a judgment for the plaintiff.

This construction of the report renders it unnecessary to consider the various other questions that have been discussed in the argument.

Judgment affirmed.