Page:North Dakota Reports (vol. 44).pdf/18

 LEROY v. HAGEN 3

month; by its terms the contract expired, and the vendor was released from any obligations, after April 1, 1911. In this contract there was printed in red ink the following:––

"Note: Each party to this purchase, by accepting this slip, accepts the above as complete and full terms of their purchase, and you are to take notice that salesmen are forbidden to, in any way, change the printed form of this guaranty, and, if changed, will not be accepted as changed by the firm."

The stallion was sold to the defendant by one Fisk, who came to the farm of the defendant with the horse, subsequently there made the sale, and produced the guaranty contract in question, which had therefore been signed in blank by Holbert. There is evidence in the record that Fisk was the district manager of Holbert in North Dakota, and had full charge of all deals, including this particular deal with the defendant. That the defendant in 1910 bred to this horse some thirty or thirty-one mares, including thirteen mares of his own, and that there was produced from this breeding only one colt. That many of these mares had produced colts before and after, when bred to other stallions.

In the fall of 1910, as the defendant testifies, he notified Fisk that the horse was not a foal getter; that the horse was no good; Fisk admitted that this horse was not a sure foal getter, or that probably the horse was not very sure, but that the defendant should keep him another year, and that, if he did not then do better, they would give him another horse; Fisk further stated that the defendant should keep the horse; that he would ship up another horse; that the defendant could get back his old notes, and that then they wanted new papers from him. That, furthermore, it was not necessary to send the horse to Iowa, because he was shipping a horse up, and that they could exchange at Tolley or Kenmare.

The defendant kept the horse during the year 1911. During that season he bred him again to various mares, and the experience again was to the effect that the mares did not become in foal. Subsequently, pursuant to arrangement made with Fisk, he met him at Minot. Fisk had some horses there, but the parties did not agree upon an exchange concerning the horses there, but Fisk stated that a horse would be shipped up for the defendant, and that the defendant should keep the