Page:North Dakota Reports (vol. 3).pdf/122

 hand machinery. The order for the same, given by appellant, was upon a written and printed form, and contained the warranty upon which the breach is assigned. The portions thereof material to this decision are as follows: “This engine and separator is the Fadden rig, and is warranted and represented to be in running order at time of delivery. * * * It is hereby understood that if any of the machinery ordered herein is second hand, and has been repaired and sold as such, it is warranted to be in good running order at the time of delivery to the buyer; and if, at the time of first starting, it is found by the buyer not to be as represented, immediate notice by telegraph or by mail shall be given to the seller at Stillwater, Minn., and the buyer shall wait until the seller gets a man there to right it, and shall give him necessary and friendly assistance, and then, at once, give the machinery a fair trial. The use of such machinery after said trial shall be conclusive evidence of satisfaction and fulfillment of the warranty.” The findings show that the machinery was delivered in the latter part of August, 1890, and appellant commenced to use the same September 2nd, 1890, and continued to use it until October 7th, 1890, and that during said time the machinery did good work, but that at the time of the delivery the boiler was in an unsafe and dangerous condition, by reason of certain defects that were unknown to appellant, and also unknown to respondent and its agent, who believed it to be in good running order; that on October 7th, 1890, the state boiler inspector condemned said boiler as unsafe, and ordered appellant to stop using the same; that until said date appellant did not know that the boiler was in a dangerous condition; that the next day appellant, for the first time, gave respondent written notice, by letter directed to it at Stillwater, Minn., of the defects in the boiler, and notified respondent that he repudiated the contract, and requested the return of his notes. It does not appear from the findings that any attention was given to this letter, and on October 23rd, 1890, appellant returned the property to the City of Grand Forks, and offered to turn the same over to the general agent of respondent from whom he purchased