Page:North Dakota Reports (vol. 1).pdf/585



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Verdict cannot be set aside as against evidence where there is a substantial conflict in the testimony. Halley v. Folsom, 325.

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1. 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 presenti, and no greater. Halley v. Folsom, 325.

2. 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. Id.

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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. Id.

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The measure of damages on breach of warranty on sale of personal property being the difference between what it would have been worth had it been as warranted and its actual value, held reversible error to allow defendant's counsel to ask a witness to testify as to the value of the machine, a self-binding harvester, on the assumption that it was useless, the evidence clearly showing that it could be, and was in fact, used, although it failed to bind all the sheaves; the answer to such question being prejudicial. Aultman & Co. v. Ginn, 402.