Page:North Dakota Reports (vol. 1).pdf/349

, Respondent, v. , Appellant.

1. Contract—Executory—Warranty.

In an executory contract for the sale of personal property, the vendor may warrant the quality of the goods contracted to be sold, and such warranty will have the binding force of a warranty upon a sale in præsenti, and no greater.

2. Same; Patent and Latent Defects—Action on Warranty.

Such warranty will not cover defects that are patent or readily discovered on inspection, and it is the duty of the vendee to reject the property if it does not conform to the representations; but if the vendee accepts the property without knowing or having reason to believe that it does not fulfill the terms of the warranty, and the defect is one that might not be readily discovered, the vendee may, upon a subsequent discovery of the defect, bring an action for damages on the warranty without returning or offering to return the property.

3. Evidence; Jury Sole Judges of Weight of.

Where there is a substantial conflict in the testimony, the jury are the sole judges of the weight of evidence; and, where the trial court charged the jury that certain propositions must be established by a clear preponderance of evidence, this court cannot say that the jury disregarded the charge of the court, simply because we might think the preponderance of testimony was not in favor of such proposition.

4. Evidence Held Incompetent to Rebut Proof of Warranty.

The poor credit of the vendee cannot be shown to rebut evidence of a warranty where the sale was made on credit, but at a price above the cash market value of the article, and security taken for the purchase price.

5. Evidence; Competency of Question Not Apparent—Exclusion Not Error.

Where an objection is sustained to a question propounded to a witness, and the competency of the question is not apparent on its face, the party must offer to prove the facts sought to be elicited before he can assign error upon the ruling upon the objection.

PPEAL from district court, Ransom county; Hon., Judge.

J. E. Robinson, for appellant, cited: U. S. Digest, Sales, § 1099; Pickett v. Hayes, 13 Ind. 181; 5 Wait’s Actions and Defenses, 554, 563; Osborne v. Gantz, 60 N. Y. 540; Maxwell v. Lee, 27 N.