Page:North Dakota Reports (vol. 3).pdf/124

 think not. We have already quoted it, supplying the ellipsis found in respondent’s quotation. We think the fair, reasonable construction of the langauge will lead to the conclusion that the use of the machinery which is declared to be conclusive against appellant upon the question of breach of warranty must occur after notice of defects; after a man has been sent to remedy such defects; after an effort has been made so to do, and the machinery then given a fair trial. It is the use of the machinery after said trial that becomes conclusive. This construction becomes irresistible by reference to other portions of the warranty, all of which is set forth in the findings. It is provided that, in case of purchase of machinery other than second hand machinery, the buyer shall have three days after it is first started to ascertain whether said machinery is or is not as warranted. If not, he shall at once give notice to the seller, and wait until a man gets there to right it, and, after the man is through, the buyer shall at once give the machinery a fair trial of two days, and the use of the machinery after the said two days shall be conclusive evidence that it is as warranted. Here is it expressly declared that the use of the machinery which shall be conclusive upon the question of warranty follows the second trial of the machinery,—the trial that comes after the efforts of the expert to correct the defects. Under the language used, it is not reasonable to conclude that it was the intention to establish a different rule upon sales of second hand machinery. In this case it does not appear, however, that any attention was ever given to the notice of defects sent on October 8th, 1890, or that any man was sent to remedy such defects, or that there ever was any subsequent trial of the machinery. Such being the case, that portion of the warranty which makes the use of the machinery after such subsequent trial conclusive against the buyer on the question of breach of warranty must be eliminated from further consideration.

But it is claimed that under the express terms of the warranty the buyer was bound, at his peril, to discover all the defects in the machinery “at the time of first starting,” and that only the defects