Page:North Dakota Reports (vol. 48).pdf/233

 him from liability if you find from the evidence that he actually warranted the cattle, or that his language amounted to a warranty, to be free from the disease of tuberculosis.

"The decisive test is whether, Mr. Walters stated that the cattle were free from the disease of tuberculosis at the time that the sale was made, and that the same was made in connection with the making of the sale, and that the defendants acted thereon, or that he used such language or words which would leave such an impression in the minds of the defendants.

"As I have already told you, if you find from the evidence that Mr. Walters made such a representation, and that it was clear and positive, and not a mere expression of opinion, and the defendants understood it was a warranty, and, relying on it, purchased the cattle, then your next question would be to determine whether there was a breach of such warranty.

"I should tell you, here, however, that, should you find from the evidence in this case that no representations were made by Mr. Walters in this case amounting to an express warranty that the cattle were free from the disease complained of in this suit, then it would be your duty to return a verdict in favor of the plaintiff for the amount asked for in the complaint, and you would not need to proceed further with your inquiries.

"Should you, however, find that the representations were made by Mr. Walters in connection with the sale of the cattle to the defendants which amounted to a warranty, warranting the cattle to be free from the disease complained of, then your next inquiry should be directly towards determining whether there was a breach of said warranty. It would then be for you to determine f rom the evidence in this case as to whether or 1not the cattle were in fact infected or afflicted with the disease of tuberculosis at the time the same were sold by Mr. Walters to the defendants. In this connection, I instruct you that it is incumbent upon the defendant to show by a fair preponderance of the evidence that the cattle purchased by the defendants from W. H. Walters, at Pipestone, Minn., were at the time of the purchase infected with a disease known as tuberculosis, and in that connection the burden of proof is upon the defendants to show by a fair preponderance of the evidence that such disease existed in said cattle at the date of purchase, and you are instructed that, unless the defendants show by a fair preponderance of the evidence that the cattle in question were infected with tuberculosis at the time of such purchase,