Page:North Dakota Reports (vol. 3).pdf/273

 warranty which related to the old one. The parties could agree, after the return of the old one, to a new contract of sale of the old binder with warranty, and therefore the agent could make a new warranty without the formality of a return, which he could not prevent. This same reasoning leads to the conclusion that the agent could attach to the continued holding of the binder by the plaintiff a condition that if it should not do as good work the next season as any other binder in the market he would take it back. This is precisely what he did agree to. It amounted, in effect, to a keeping of the machine by the plaintiff on trial, with aright to return it next year if it should fail to work as stipulated by defendant’s agent. Had the binder been returned as sold, Crafts would have had power to sell it on trial. Deering v. Thom, 29 Minn. 120, 12 N. W. Rep. 350; Oster v. Mickley, 35 Minn. 245, 28 N. W. Rep. 710. He therefore had power to promise to take back the binder if it did not work as warranted, without the necessity of a formal surrender of the machine and the cancellation of the contract of sale and the making of a new contract. Whatever view we take of the matter,—whether we regard the old warranty as undisturbed, or consider that a new warranty was made relating to the work the binder would do during the year 1890, or that an agreement was made to take back the binder if it should fail to do good work during the year 1890,—we reach the same conclusion. We hold, as a matter of law, that the binder was returned in time.

But it is urged that Crafts had no authority to give the oral warranty which he made on the sale of the binder. His employment was in writing. It restricted his power to warrant to a written warranty of a specified character, differing from the oral warranty given to plaintiff. This writing was offered in evidence but on objection of plaintiff it was excluded. In this there was no error. There is no pretense that plaintiff had notice of this restriction of the power of the agent. On the contrary, it affirmatively appears that he did not have such notice. Unless actually restricted in his authority an agent to sell has power to