Page:North Dakota Reports (vol. 48).pdf/258

 O. H. LUMRY, Respondent, v. ANDREW KRYZMARZICK, Appellant.

(184 N. W. 254.)

Sales—delivery indicates intention to pass title, but is not conclusive of immediate transfer.

1. In an action to recover the purchase price of a second-hand tractor plowing outfit alleged to have been sold and delivered to the defendant, where the evidence was conflicting as to the place where delivery was to be made—whether upon plaintiff’s farm where the tractor was situated when the contract was made or upon the defendant’s farm some. twenty-five or thirty miles distant—but where there was no dispute as to the obligation assumed by the seller to put the outfit in fair working condition for plowing; and where the evidence showed that the engine had ‘never been put in fair working condition, it is held:

Delivery, in the sense of change of physical possession from the seller to the buyer, while a strong indication that the parties intend to pass title, is not conclusive of an intention to transfer title immediately.

Sales—where seller was to repair after delivery, inferred that title was not to pass prior thereto.

2. Where, after delivery to the purchaser in the circumstances disclosed in the evidence, work of a substantial character remained to be done by the seller to put the property in a condition in which it would be of some use to the purchaser, it is a fair inference that the parties did not intend that title should pass until this work was done.

Sales—buyer may defend for seHer’s breach notwithstanding prior failure to rescind.

3. Where title has not passed under a contract for the sale of specific property, and where the seller has been guilty of a substantial breach of the contract, the purchaser may defend an action for the price notwithstanding his prior failure to effect a rescission of the contract.

Opinion filed June 22, 1921. Rehearing denied September 10, 1921.

Appeal from the District Court of McLean county, Nuessle, J.

Reversed and remanded.

R. L. Fraser and J. A. Hyland, for appellant.

If under a contract for the sale of specific goods the seller is bound