Page:North Dakota Reports (vol. 1).pdf/427

 vased, although it failed to bind all the sheaves; the answer to such question being prejudicial.

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

Action on promissory notes. Answer admits execution and delivery of notes; alleges that they were given for a self-binding harvester, which was sold to defendant with a warranty that it was made of proper materials and was suitable for purpose of cutting and binding grain; that defendant relied on the warranty in buying the machine; that in fact it was useless for said purpose, that in trying to use said machine and through its failure to work defendant suffered damage to amount of $200.00; that he had paid on the purchase price of the machine $92.00; and demanded judgment for $292.00 and costs. Reply denied the allegations of the answer setting up a counter claim, and set out the terms of the warranty. Verdict for plaintiff in sum of $20.00. Plaintiff appealed. Thirteen assignments of error were made and argued by appellant’s counsel, only one of which is considered by the court.

W. J. Kneeshaw and Cy. Willington for appellant cited on the point discussed in the opinion: Osborne v. Marks, 33 Minn. 56.

T. W. Gaffney, for respondent, filed no brief.

, C. J. Under the pleadings the defendant in effect became plaintiff. He admitted plaintiff's cause of action, and sought to recoup damages for breach of warranty on sale of a self-binding harvester for which the notes sued upon were given. So far as the machine was concerned, the measure of defendant’s damages on breach of warranty was the difference between the value of the machine had it been as warranted and its actual value at the time of delivery. Comp. Laws, §4593. There being no evidence to the contrary, the presumption is that the property would have been worth the contract price had it been as warranted. In receiving evidence as to its actual value, the court erred in allowing this question to be answered: "I will ask