54 N.W. 311 | N.D. | 1892
This action was brought to forclose a mortgage given to secure the purchase price of a steam threshing outfit. .The defense was breach of warranty, followed by a rescission of the contract and a return of the property. From a decree of foreclosure, with judgment for deficiency against him, defendant appeals. The findings of fact are not questioned, but the legal conclusions are challenged. The property purchased was second
No question is raised, it will be noticed, upon the right of the buyer.to return the property unless such right had been waived. Appellant was precluded from the defense of breach of warranty solely by reason of his conduct in using the property for such length of time without notice of defects. Whether this conclusion was based upon the express terms of the warranty, or upon general principles of law pertaining to the subject, we are not definitely informed. The learned counsel for respondent, in his brief, puts his construction upon the warranty, and prints it 'as follows: “That if, at the time of first starting, it is found by the buyer, not to be as represented, immediate notice, by telegraph or mail, shall be given to the seller at Stillwater, Minn. * * * The use of the machinery after such trial shall be conclusive evidence of satisfaction and fulfillment of the warranty.” Under that construction the law is undoubtedly with respondent, as we regard it well settled that where an express warranty is upon condition, or when some duty is devolved upon the purchaser by the terms of the warranty, such condition must be fulfilled, or such duty performed, before advantage can be taken of any breach of such warranty. Nichols v. Knowles, 31 Minn. 489; 18 N. W. Rep. 413; King v. Towsley, 64 Ia. 75; 19 N. W. Rep. 859; Russell v. Murdock, 79 Ia. 101; 44. N. W. Rep. 237; Worden v. Harvester Co., 11 Neb. 116; 7 N. W. Rep. 756; Threshing Machine Co., v. Vennum, (Dak.) 23 N. W. Rep. 563. But Will the warranty bear that construction? We
But it is claimed that under the express terms of the warranty the buyer was bound, at his peril, to discover all the defects in the machinery “at the time of first starting,” and that only the defects
An inspection of the record in this case discloses another reason why we should reach this conclusion. The original contract is partly printed and party written. The first warranty of the particular property involved, and which we have already quoted, is in writing, and is unconditional and absolute. The conditional warranty is printed. Tó give that conditional warranty the construction for which respondent contends would make it entirely inconsistent with the written warranty. A well settled rule of construction, in all such cases, makes the written portion of the contract controlling, as being that to which the attention of the parties was more directly and specifically called.
The judgment of the District Court is reversed, and a new trial granted.