Page:North Dakota Reports (vol. 3).pdf/205

 vs. .

Opinion filed March 15th, 1893.

Breach of Warranty—Burden of Proof.

Written contract construed, and Ae/i, to constitute an agreement for sale and purchase of property, the title to pass on delivery and acceptance thereof. After such delivery and acceptance the purchaser cannot claim, in an action for the purchase price, that the burden is on the vendor to show that the property was as warranted. The warranty is collateral, and the purchaser must affirmatively show a breach thereof, and full performance of all conditions precedent of the warranty, to entitle him to rescind and defeat the action.

Declarations of Agent—Incompetent Proof of Agency.

The fact of agency and the extent of an agent's power cannot be proved by the agent’s declarations.

Authority in Writing—Excludes Parol Proof.

The scope of an agent's authority cannot be established by parol when the employment of the agent defining his power is in writing.

Prior Negotiations Inadmissable.

The rule excluding all prior and contemporaneous negotiations when a con- tract is reduced to writing Ae/d applicable to the facts of this case.

Appeal from District Court, Richland County; Lauder, J.

Action by the Plano Manufacturing Company against William Root. Plaintiff had judgment, by direction of the court, and defendant appeals.

Affirmed.

McCumber & Bogart, for appellants

Plaintiff sued upon a written contract. By the terms of its warranty it was incumbent upon the plaintiff to furnish the defendant a machine that was’ well made, of good material and with proper care and management, capable of doing as good work as any other machine on the market.

The basis of plaintiff's action being upon a contract, it was necessary for it to show that it had complied with the terms of the contract, and this before it could put the defendant on his defense. When plaintiff closed its case it had not shown compliance with its contract; therefore defendant's motion for a directed