put it up through between rollers,-another kind of rolls that were used to keep the paper tight,-and put it on up through the cylinder in the machine; then we started the machine slowly, and held my hand down there, at this cylinder, right past those unguarded cogwheels, to run the paper around the cylinder.' * * "While "I reached into the machine." * * "right behind the cylinder; right where-well, right at the cylinder." "I had to hold the paper up against the cylinder so it would go around with the cylinder." * I was doing that, I was putting it through just the same, and I kind of well, I was standing with one hand, on the rope to start and stop the machine, and my left hand holding the paper up against the cylinder, and my foot kind of slipped. First, the paper wasn't just running right, and I went to look down, to see how it was going, and my foot slipped a little, and I reached and grabbed the rope, stopped the machine, and then I seen my arm was fast." The injury resulted in the loss of the plaintiff's left arm. It also appeared that the plaintiff had been employed by defendant for about a year and a half prior to the time of the accident, of which time he was operating the blending machine seven or eight months, immediately preceding the time of the accident. The plaintiff also testified that the way in which he was operating at the time of the accident, was the way in which he had been instructed, and was the only way to his knowledge by which the blending machine could be operated, and was the manner of operating by all the operators in that factory on that floor, of blending machines. As to the manner of his operating the machine and his instructions and the usual way in which such machines were operated, his testimony was corroborated by one other witness who worked in the same factory. It was testified by many other witnesses that the ordinary usual and safe method of doing what the plaintiff was doing at the time of the accident, was to go to the front of the machine, pull the lever which would stop the machine and then go to the side or North of the machine, smooth the crumpled or clogged paper and attach it to the cylinder by wetting the paper, then go back to the front and start the machine. The whole trend of defendant's evidence was to show that the plaintiff knew the safe way to do the work which he was doing when the accident happened, and that the way he did it was so obviously dangerous that in not pursuing the safe way he was guilty of contributory negligence, and because the Court left these disputed facts entirely to the jury, the defendant now complains and asks for judgment non obstante veredicto or for a new trial. The reasons advanced by it to support the motion for a new trial are as follows: 1st. "The Court erred in the admission of testimony offered on behalf of plaintiffs against the objection of defendant." 2nd. "The Court erred in the rejection of evidence offered on behalf of defendant." 3rd. "The Court erred in its general charge to the jury." 4th. "The verdict is against the law and the evidence." 5th. "The verdict is against the weight of the evidence." 6th. "There is nothing in the evidence in the case to warrant the verdict rendered by the jury." 7th. "The Court erred in not complying with defendant's request to withdraw a juror and continue the case at the cost of plaintiff." We can find no other or more explicit reasons assigned in writing in support of the motion for a new trial, and there is nothing in the written brief which would tend to designate the particular evidence referred to. We suggest to counsel that more punctual compliance with the Act of Assembly and the rules of this Court in that respect, would considerably facilitate the work of the Court. We have carefully examined the evidence and can find nothing which would justify us in sustaining the first, second, third, fourth, fifth or sixth reasons. The seventh reason cannot be sustained. We are aware that attorneys will often allow enthusiasm to lead them, when addressing juries in behalf of their clients, to make remarks and use illustrations which should be discouraged because of the tendency to mislead the jury into considering improper facts, but in the incident complained of we are of the opinion that the counsel for plaintiff did not do more than indulge in one of those bursts of natural eloquence which are so frequent in closely contested cases, such as this seemed to be. The language which he used in reference to insurance did not come within the rule laid down in the case of Hollis vs. United States Glass Company, 220 Pa. 49. There the jury was told, "It is nothing to the Glass Company what the verdict should be; it is the insurance company that will pay the verdict." In this case the language used was, "And we will give him something that he can have to live on in the future, and give him some compensation, because, gentlemen of the jury, if you gave him all that this plant may have cost and the insurance company may be worth, you could not replace that arm, you could not recompense him for the injury that they have done to Walter Rahe." At the time we refused the request of the defendant's counsel to withdraw a juror, the plaintiff's counsel had finished his address, which we had listened to very closely; we had in mind that the counsel was prompted to make it by the allusions which defendant's counsel had made to the testimony and standing of a certain witness for the defence by the name of Moffet, and the only other allusion which was made to the insurance company had been drawn out by defendant's counsel. "Raymond J. Moffet sworn." "Mr. Niles. Where do you live? "A. Investigator. "Q. For what? "A. Ocean Accident and Guaranty Corporation," and the subsequent cross examination on this subject. The verdict rendered does not indicate that the remarks had any influence in its formation. The other remarks complained of, we are of the opinion came within the compass allowed by the case of Rockwell vs. Eldred Boro., 7 Pa. Super. Ct. 97. For these and other reasons which occurred at the trial within the observation of the Court and jury, we adhere to the opinion that the Court was not warranted in withdrawing a juror and continuing the case as requested. We affirmed the only point submitted by defendant, which did not call for binding instructions. It is true, that there were many more witnesses who described what was termed the proper, safe and usual way of doing what the plaintiff was doing at the time of the accident, but in so far as they contradicted the testimony given by the plaintiff's evidence, the preponderance and weight of the evidence was a matter for the jury. There is no exception to the matters contained in the body of our charge, and we cannot see any reason which appears either on the record of the case as tried or as given in any of the exceptions, why a new trial should be granted, or judgment non obstante veredicto should be entered. The rule granted in this case is discharged, and motion for judgment non obstante veredicto is refused. Judgment on the verdict may be entered. A. L. ESHBACH vs. E. M. BOOK. Sale-Warranty Offer to Return-Retention-Difference in Market Value-Legal Tender-Check. Where a cow is purchased with a warranty as to soundness, it is the duty of the purchaser to return or offer to return it as soon as the breach of warranty is discovered. If the cow is retained, the purchaser is obliged to show in a suit for the purchase money the difference, if any, in the market value at the time of purchase in good condition and the time of the breach. Where in an action for the purchase price of a cow the defense is that the cow was not purchased, it is immaterial whether the cow was unsound. A check is not a legal tender, and in the absence of proof that it was received as payment, the drawer is not relieved from liability. In the Court of Common Pleas of Lancaster County. April Term, 1912, No. 58. Rule for new trial. B. F. Davis, for Defendant and Rule. July 11, 1914. Opinion by Landis, P. J. This suit arose out of a sale of two cows alleged to have been made by the plaintiff to the defendant. The verdict was in favor of the plaintiff. and, therefore, his story of the transaction must now be taken as the true one. Let us briefly see what the evidence presented by him discloses. he He testified that, in December, 1911, he had, on a certain farm belonging to him, located in Martic Township, this county, a lot of cows. One day, on a public road, he met the defendant, and, after some conversation between them, he says the defendant asked him if he "had a pair of cows that might make him some money.' The plaintiff says he told Book he had "springers" (meaning cows coming fresh the next spring), and he thought he could suit him. No arrangement was made between the parties at this time, and they both testified that they separated without any agreement. It appears, however, that subsequently the defendant went down to the plaintiff's farm, and, having looked over the cows, telephoned to the plaintiff that he had picked out two cows, stating what they were, and asked the plaintiff the price at which he held the pair. In answer, it was stated that the price was $80. The plaintiff testified: "I asked him $85.00 for a certain pair of cows, and then, when he came on the farm, he didn't pick the pair, . . but he and my farmer picked on another cow that they thought was more suitable,. .. and he came back to the 'phone and told me that he picked on a Jersey cow and a red cow, both springers, and wondered what I wanted for them, and I told him that I couldn't take less than $85.00 for them. He said that he wouldn't give eighty-five; that he would give eighty; and I told him that I couldn't deliver them for $80.00; if he wanted to buy them for $80 he had to take them away himself. So he came and took them away." According to the plaintiff's version, the sale was to be for cash, the defendant saying that, if Eshbach would "wait until he comes up through, he would give. . the cash," and that, after January 17, 1912, when he came through with a load of potatoes, Book told him that he had sold his tobacco, and, when he delivered it, he would pay cash, and that he (Eshbach) said he supposed "it would be all right;" that he heard nothing more until about the 7th of March, when Book sent him a |