Page:North Dakota Reports (vol. 48).pdf/224

 FARMERS' NATIONAL BANK of Brookings, S. Dak., a corporation, Respondent, v. L. and M. TUDOR, individually and as co-partners under the firm name of L. Tudor & Son, Appellants.

Sales-instruction limiting express warranty in sale of cattle to statement that they were free from tuberculosis held erroneous.

1. Defendants purchased certain registered cows and calves from one Walters for $6,675.00, paying $2,000.00 cash at the time of purchase, and giving their negotiable promissory note for the balance, secured by a chattel mortgage on the stock. After maturity Walters sold the note to the plaintiff. Default having occurred in the terms of the mortgage, plaintiff brought action to foreclose. The answer admitted all the equities, such as the giving of the note and mortgage and failure to pay the note after its maturity, but interposed the legal defense of breach of warranty, alleging damage in a given amount. Defendants allege that the warranty was to the effect, that Walters, at the time of the sale, represented, stated and warranted that the cattle were in good condition, in perfect health and free from disease, and were in every way all right. It was further alleged that, at the time of the sale, the stock so purchased were infected with tuberculosis. The facts, with reference to the warranty and its breach, and the damages, if any, suffered by defendants thereby, were submitted to a jury. It returned a verdict for plaintiff.

The court, in substance, instructed the jury, that, in order to determine whether there was an express warranty, it must be shown that there was an express, direct affirmation by Walters at or before the time of sale, that the cattle sold were free from the disease of tuberculosis;

It is held, for reasons stated in the opinion, that the giving of this instruction, which is fully set out in the opinion, was prejudicial to defendants and was reversible error.

Appeal and error-dismissal of appeal denied.

2. For reasons stated in the opinion, the plaintiff's motion in this court, to dismiss the appeal, is denied.

Appeal from a judgment of the District Court of Cass County: Englert, J.