Page:North Dakota Reports (vol. 3).pdf/261

 judgment, and from an order denying a new trial, defendant appeals. Reversed.

McCumber & Bogart, for appellant.

Where the warranty under which machinery is sold requires written notice to be given the vendor or its agents in case of breach, noaction based on such breach is maintainable unless such notice has been given. Micholas v. Wyman, 32 N. W. Rep. 258; Furneaux v. Esterly, 13 Pac. Rep. 824; Nicholas v. Larkin, 79 Mo. 264; Nicholas v. Hall, 4 Neb. 210; Milley v. Nicholas, 5 Neb. 478; Bomberger v. Greiner, 18 Ia. 477; Dewey v. Borough, 14 Pa. St. 211. Where contract provides that keeping the machine during a certain season shall be conclusive evidence that it fulfills the warranty—keeping it during such time waives any defense based on the warranty. Wendall v. Asborn, 18 N. W. Rep. 709; Bayliss v. Hennesy, 6 N. W. Rep. 46.

W. E. Purcell and L. B. Everdell, for respondent.

, J. The basis of this action is the rescission of a contract for the sale and purchase of a twine-binding harvester. The plaintiff purchased the property of the defendant for $110, giving his negotiable‘promissory note therefor. Upon the sale a written warranty was given to plaintiff by defendant. Plaintiff, claiming that the harvester was not as warranted, returned the machine, and brought suit to recover the purchase price, alleging the defendant had negotiated the note before maturity thereof. One of the defenses set forth in the answer was estoppel by record. This defense was struck out on motion at the trial. We are thus compelled to determine its sufficiency. It set up, in substance, that the note was transferred to the First National Bank of Whitewater, Wis., and that suit was brought upon it by the bank before a justice of the peace, and that in that suit the defendant therein, and the plaintiff in the case at bar, relied as a defense upon the same breach of warranty, followed by the same rescission of the contract of purchase, which constitutes the groundwork of his cause of action in this case. Judgment was