Page:North Dakota Reports (vol. 3).pdf/270

 Action for breach of contract by John Canham against the Plano Manufacturing Company. Plaintiff had judgment, and defendant appeals.

Affirmed.

W. E. Purcell and L. B. Everdell, for appellant. McCumber & Bogart, for respondent.

, J. The defendant sold and delivered to plaintiff a twine binder. For this, plaintiff gave his three promissory notes. He subsequently returned the machine claiming that there was a breach of the warranty accompanying the sale, and, having paid two of these notes, he brings suit to recover the amount so paid, and also the amount due on the other note. If there was a valid warranty on such sale, and a breach thereof, and a valid rescission of the contract, then the consideration for thesc notes failed, and it was the duty of the defendant to return the note which remained unpaid, and to restore the money which had been paid by the plaintiff in satistaction of the other two notes. One of the notes was paid to the agent on his promise to remedy defects in the machine, and the other one was paid by plaintiff to one claiming to be an innocent purchaser for value. In making these payments plaintiff did not waive his right to a return of the money on failure of the consideration of these notes. The other note having been negotiated before maturity by the defendant, it is liable to plaintiff for the amount due thereon if a failure of consideration is established. Fakhey v. Harvesting Co., 55 N.W. Rep. 580, (decided at this term,) and cases there-cited.

The sufficiency of the complaint was challenged, but it is clearly sufficient. It shows a breach of warranty and rescission of the contract which would entitle plaintiff to recover the amounts paid on the two notes and the amount due on the note negotiated by defendant before maturity. All these facts relating to these notes are fully set forth in the complaint. It therefore states a cause of action. The court directed a verdict for the plaintiff for the full amount claimed. From the judgment entered upon this verdict,