Page:North Dakota Reports (vol. 48).pdf/235

 The motion in this court to dismiss the appeal is denied. The action was one to foreclose a chattel mortgage. The answer admitted the matters in equity involved in the case. It admitted the execution and delivery of the note, and the default in the payment thereof. It admitted the execution and delivery of the chattel mortgage to secure the same. This disposed of the equitable features of the case, for, if the plaintiff recovered on the note, there was no defense to the foreclosure. All that remained was defendants' legal defense on the note, based on breach of warranty by Walters in the sale of the cattle, for which defendants claim damages as prayed for in the complaint.

Under the rule announced in Lehman v. Coulter, 40 N. D. 177, 168 N. W. 724, defendants rightly were entitled to have this issue submitted to a jury as a law issue. In such case the verdict should not be regarded as advisory. The defendants were entitled to, the right of trial by jury of the legal issues, accompanied by proper instructions by the court of the law relative to those legal issues. This in effect has been defendants' theory of the appeal, and they have perfected their appeal accordingly, and in this we think there was no error.

The court having erred, to the prejudice of the defendants, in giving the instruction above set forth and analyzed, and the giving of which is the basis of the fourth assignment of error, the judgment appealed from should be reversed, and a new trial had upon the law issues involved in the case.

The judgment appealed from is reversed, and the case is remanded to the trial court for further proceedings not inconsistent with this opinion.

The appellant is entitled to his statutory costs and disbursements on appeal.

ROBINSON, C. J., and CHRISTIANSON, J., concur.

BIRDZELL, J., dissents.

BRONSON, J. (dissenting). The record discloses that this action was fairly and fully tried. The transcript consists of about 500 pages. The only reason found for a reversal of this case by the majority opinion is the giving of an instruction by the trial court concerning an express warranty. I am of the opinion that this instruction as given upon this record was not prejudicial error.