The opinion of the court was delivered by
Wheeler, J.
This is an action founded upon contract. The jury have found a contract between the plaintiff and the defendant, by the terms of which the defendant was to take an evaporator of the plaintiff upon trial, and pay for it if he liked it, the plaintiff to take it back if he did not like it. The plaintiff cannot recover except for a breach of the contract. He only seeks to recover for such a breach as would entitle him to recover the price of the evaporator.
The trial upon which the defendant took the evaporator was to be had for the purpose of ascertaining whether the defendant liked it or not, and not for the purpose of ascertaining whether it was equal to the plaintiff’s recommendations of it or not. The trial was to be had solely with reference to the defendant’s wishes in *532respect to the machine for such uses as he might find he could make of it and not with any reference to any usefulness of it for other persons. To this trial the defendant was bound to bring honesty of purpose ; anything short of that would not determine Ms wishes, fairly, but only Ms willful caprice or Ms dishonorable design. To it he was not bound to bring any more capacity or judgment than he had, for he was only to ascertain Ms own wishes, and these could be measured by no judgment or capacity but his own. He was not to determine what would be the wishes of ordinary persons under like circumstances, and therefore was not bound to use the care and skill of ordinary persons in making the determination. His duty to the evaporator, as custodian of it, is not now here in question, but only his duty and liability under the contract concerning it. This duty was the trial of it, and payment for it, -if on trial of it he liked it. To the trial the charge of the court required him to bring honesty of purpose and judgment according to his capacity to ascertain his own wishes, and refused to require the care and skill of ordinary Dersons in making that determination. This seems to have been correct.
Judgment affirmed.