Page:North Dakota Reports (vol. 3).pdf/272

 Section 3962, Comp. Laws. As such agent he had authority to make the warranty on the sale already referred to. Section 3985, Id.; McCormick v. Kelly, 28 Minn. 135, 9 N. W. Rep. 675. It cannot be doubted that he had power to represent and bind the defendant by his subsequent conduct and promises, inducing plaintiff to refrain from prompt action on discovery of the defects in the machine. Snody v. Shier, (Mich.) 50 N. W. Rep. 252; Pitsinowsky v. Beardsley, 37 Iowa, 9. Defendant, through its authorized agent, by its promises and conduct, lulled the plaintiff into a sense of security against prejudice from his failure promtlypromptly [sic] to restore the property, and cannot be heard to insist that the delay until the year 1890 is fatal to plaintiff's right to rescind for breach of warranty. Snody v. Shier, (Mich.) 50 N. W. Rep. 252; Manufacturing Co. v. Kelly, 26 Ill. App. 394. In fact, there was a new warranty made in the fall of 1889 that the machine would do as good work the next season as any other binder in the market. In the month of August, 1890, after repeated efforts by plaintiff to induce Crafts to send an expert to fix the binder in accordance with his promise, one was finally sent out to plaintiff's farm. It was Saturday night before the work was finished. Early Monday morning plaintiff started the machine. It did not do good work. The same day it was returned: by plaintiff to the same place from which he took it when he purchased it, and he then notified the agent Crafts that he had returned it, and demanded a return of his notes. If Crafts was agent for the defendant during the year 1890 in the sale of its machines, there can be no doubt that plaintiff acted promptly in returning the property to defendant, in view of the promises and conduct of defendant's agent inducing delay, and therefore amounting to a waiver of return until after defendant's final effort to fix the machine. That Crafts could give a new warranty, after failure to make the binder work during the harvest of 1889, cannot be doubted. There being a breach of a former warranty, plaintiff had it in his power to return the binder and have back his notes, or a new machine in place of the defective one. This new machine would be delivered upon the same