Page:North Dakota Reports (vol. 3).pdf/209

 performed the conditions which the warranty imposed upon him. The breach of the warranty, followed by a return of the property, constituted no defense, because the plaintiff warranted the machine on the condition that defendant should give it notice of the breach at its head office, and this condition was not performed by defendant. The contract does not give the defendant the unrestricted right to rescind in case the machine fails to comply with the terms of the warranty. After written notice the company is to have a chance to remedy the defect; and then, if it will not do good work, the defendant has for the first time a right to return the machine. Even then he cannot insist that he should have back his money or his notes, or treat the contract as ended and his liability as extinguished. The company has the option to agree to this, or to furnish a new machine in the place of the defective one. There was no error in excluding the offer to prove by defendant Parson’s declarations that he was plaintiff's general agent. It was mere heresay. An agent's powers or the fact of agency cannot be established by the agent’s own declarations. Such evidence was not competent to impeach the witness Parsons, because no foundation for impeachment had been laid, and, being defendant’s own witness, he could not be impeached by defendant. There was no question of fraud in the case. Fraud was not set up in the answer. No such question was raised upon the trial. It is too late to urge it here for the first time, nor was there any evidence of fraud. The judgment of the District Court is affirmed. All concur.

(54 N. W. Rep. 924.)