Page:North Dakota Reports (vol. 3).pdf/260



Opinion filed March 21st, 1893.

Rescission by Buyer—Notice of Breach of Warranty to Seller.

Before the purchaser after sale can recover back the purchase price, on the theory of breach of warranty and rescission, he must fully perform all conditions precedent on his part to be performed according to the terms of the warranty. On sale of a harvester, the contract of warranty provided that the purchaser should give written notice of defects, not only to the agent from whom the machine was received, but also to the company at its headquarters. No notice to the company was given. Held, under the evidence, that there was no waiver of this requirement, and that therefore plaintiff could not recover back the purchase price on breach of warranty, although the machine was returned by him.

Res Judicata.

When it is not certain that the same question was determined in favor of the party, in another action, who relies on the judgment therein as conclusive as to such question, the judgment is not final on the point. Held that, in an action to recover the purchase price of a harvester, on the theory of a breach of the warranty and rescission of the contract, defendant herein could not rely on a judgment against plaintiff in favor of the indorsee for value of a note given by plaintiff on the purchase of such harvester, as settling the issue of a breach of warranty and rescission of the contract of sale against the plaintiff, for the reason that the judgment against plaintiff might have been rendered on the ground that, despite a breach of warranty and rescission of the contract of sale, the indorsee of the note might have recovered as an innocent purchaser thereof before maturity ; such a defense not being available as against such a purchaser of negotiable paper, and there being nothing to show on what particular ground the judgment was rendered.

Transfer of Note—Recovery of Amount of Note Upon Rescission for Breach of Warranty.

Where a purchaser of property gives his note therefor, and afterwards rescinds the contract of sale on the ground of breach of warranty, he may recover the amount of the note and interest, without first paying the same, when the note was negotiated before maturity to an innocent purchaser for value. But the judgment should provide that upon the return of the note to the plaintiff, and his release from all liability thereon growing out of any judgment which has been recovered thereon, and on payment of costs within a specified time, the judgment should be satisfied.

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

Action by Patrick Fahey against the Esterley Harvesting Machine Company for a rescission of contract. Plaintiff had