Page:North Dakota Reports (vol. 48).pdf/234

 then it would be your duty to return a verdict in favor of the plaintiff for the full amount."

This instruction in effect informed the jury that the test of whether there was an express warranty was to be determined by sufficient and competent evidence to the effect that Walters stated, at the time of the sale, that the cattle were free from the disease of tuberculosis. In other words, unless the jury found that Walters made that statement at the time of the sale, there was no express warranty. In view of that instruction, there was nothing for the jury to do except to return a verdict for plaintiff. For there is no evidence showing that Walters expressly warranted that the cattle were free from tuberculosis.

The court in effect instructed that, unless there were words expressly warranting against tuberculosis, there was no express warranty. Certainly this is far from correct, and constitutes a fatal and prejudicial error. If, as alleged, Walters represented that the cattle were in good condition, and were in perfect health, free from disease, and were all right, that constituted an express warranty, at least against every disease, not readily discernible, including tuberculosis. It was not at all necessary nor incumbent upon the defendants to show that, at the time of the sale, Walters specifically warranted the cattle to be free from tuberculosis. All that was incumbent on them to show was that he represented and warranted them to be in perfect health, or free from disease, or all right, as those terms were used with reference to the health of the cattle.

The jury by the instruction should have been informed of the terms of the warranty, and then instructed to the efféct that if it found the cattle were not in perfect health, free from disease, and all right, at the time of the sale, then they should find for the defendant. Necessarily, then, if the jury from the evidence did find that the cattle at the time of the sale were tubercular, or were infected with, or had, any other disease, which could not readily be observed, it could find that the express warranty was broken. In other words, it was not at all necessary for Walters to use language mentioning any particular disease, to make him liable on the express warranty as made. There is sufficient evidence to establish the making of the express warranty by Walters, as alleged by the complaint. The instruction, as given, simply foreclosed the case against defendants. If the jury.followed the instructions of the court in this regard, it could do nothing else, except bring in a verdict for the plaintiff.