Page:North Dakota Reports (vol. 3).pdf/121

 ? the points which we have already ruled to be immaterial in this case.

The judgment of the District Court is affirmed. All concur.

(54.N. W. Rep. 288.)

The Minnesota Thresher Manufacturing Co. vs. Elias Hanson.

Opinion filed Nov. 23rd, 1892.

Sale—Warranty Construction.

Contract of warranty upon the sale of a steam threshing machine construed. This court will not limit such warranty to such defects only as are discovered when the machinery is first started, unless the wording clearly requires such restriction.

Action for Price—Defense—Estoppel.

Continued use of machinery purchased under a warranty, after knowledge of defects may destroy the buyer's right to rescind the contract, but will not destroy his right to plead a breach of warranty to defeat a recovery, in whole or in part, in an action brought by the seller to recover the purchase price.

Appeal from District Court, Grand Forks County; Templeton, J.

Action by the Minnesota Threshing Manufacturing Company against Elias Hanson. Plaintiff had judgment, and defendant appeals.

Reversed.

Bangs & Fisk, for appellant.

A. J. O'Keefe, for respondent.

Bartholomew, J. This action was brought to forcloseforeclose [sic] 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 N. D. R.—6.