Page:North Dakota Reports (vol. 3).pdf/264

 determine what was in fact settled by the judgment given by the justice of the peace; whether the defendant was liable because there was not a breach of warranty and rescission, or because, notwithstanding such breach and rescission, the defense must fail as against the plaintiff, found by the court to be a bona fide purchaser of negotiable paper before maturity. To recover it was incumbent on plaintiff to show that he had performed all the conditions precedent of the warranty to be performed on his part. This he did not do. Mere breach of the warranty did not entitle him to rely upon its promises. ‘He must have taken action 4o hold the defendant to its warranty after a breach. It is only upon giving written notice to the agent from whom he received the machine, and also to the Esterley Harvester Machine Company at Whitewater, Wis., that he is allowed to avail himself of the warranty. Failure to give such notice, it is provided, is conclusive against the purchaser's right to rely on the warranty. The same evenhanded justice which requires the defendant to keep its promise demands of the plaintiff that he perform his part of the agreement. Neither will it do to assert that notice to the company in addition to notice to the agent from whom the machine was received, was of no value to the company. The plaintiff has foreclosed all inquiry into that question by agreeing to give such notice. Noris it difficult to conceive of good reasons for requiring this additional notice. Agents in their zeal to establish a reputation for making sales, and in their natural desire to earn commissions, may often be inclined to go to greater lengths in their endeavor to sustain a sale than the sound business judgment of the company would approve. It is necessary that the company should have direct notice of the purchaser's claim that the machine is unsatisfactory, that the company may act itself in determining what shall be done in such an exigency. If notice is to be given only to the agent, there is no certainty that the company will ever in fact know of the trouble, in time to act prudently. It may often learn of it too late to save itself from heavy loss, and many find its right seriously embarrassed by the actions and agreements