54 N.W. 924 | N.D. | 1893
The action was brought to recover the purchase price of a binder sold by plaintiff to defendant. On the trial a verdict was directed for the plaintiff. Defendant appeals. The order for the binder was in writing. It constituted the contract between the parties. It, in substance, authorizes and requests an agent of the plaintiff’s to procure for defendant a harvester and binder, describing it, for which defendant agrees to pay $120 in addition to freight, etc., on delivery of the property. The order then continues as follows: “I understand that the machine referred to is sold, and that I am purchasing the same subject to the' following warranty and agreement, and that the agent above named, as well as the person to whom I deliver this instrument, has no authority to add to, abridge, or to change said warranty in any manner. The warranty is as follows, to-wit: The warranty referred to states that the binder is well' made of good materials, and with proper care and management is capable of doing as good work as any other machine in the market. Other provisions of the warranty will be referred to later. The execution of this order, and the delivery of the machine thereunder, were admitted.
Plaintiff having rested without proving that the binder was well made of good materials, and was papable of doing as good work as any other machine in the market, defendant moved to dismiss,