Page:North Dakota Reports (vol. 3).pdf/126

 Kent v. Friedman, 101 N. Y. 616; 3 N. E. Rep. 905; Vincent v. Leland, 100° Mass. 432; Taylor v. Cole, 111 Mass. 363; Warder v. Fisher, 48 Wis. 338; 4 N. W. Rep. 470; Ferguson v. Hosier, 58 Ind. 438; Fennock v. Stygles, 54 Vt. 229; Smith v. Mayer, 3 Col., 207. We are unable, under the findings of fact, to discover any legal reason, either in the express words of the warranty or otherwise, why appellant may not in this case take advantage of the breach of the warranty, if any such breach in fact exists.

An inspection of the record in this case discloses another reason why we should reach this conclusion. The original contract is partly printed and party written. The first warranty of the particular property involved, and which we have already quoted, is in writing, and is unconditional and absolute. The conditional warranty is printed. To give that conditional warranty the construction for which respondent contends would make it entirely inconsistent with the written warranty. A well settled rule of construction, in all such cases, makes the written portion of the contract controlling, as being that to which the attention of the parties was more directly and specifically called.

The judgment of the District Court is reversed, and a new trial granted. All concur.

(54 N. W. Rep. 311.)