Page:North Dakota Reports (vol. 48).pdf/260

 “in good working order.” The evidence is conflicting as to the portion of the agreement relating to the delivery of the engine; the plaintiff contending that he agreed to deliver it upon his own place where it was then standing, and the defendant that delivery was to be made upon his farm which, as stated, was some 25 or 30 miles distant; and that the plaintiff not only agreed to do this but to start plowing with it. The plaintiff, at the defendant’s request, made arrangements to have the plows moved to a certain corner where they could be picked up by the engine en route to the defendant’s farm. Some time after the deal was made (about April 20th), the plaintiff sent Frank McDonald out to get the engine in shape for delivery. The ignition system was lacking, the plaintiff having taken off the magneto to preserve it. In making the sale he agreed to repair the magneto, or, if it could not be made to work properly, that he would supply a new Atwater-Kent system.

McDonald, with a helper, worked on the engine 8 or 10 days before attempting to move it on the road to the defendant’s place, and it required approximately 10 days more to move the engine to the defendant’s farm. McDonald accounts for the time consumed on the road by stating that the weather was rainy, the roads muddy, and that they got stuck several times. The defendant sent for the extension arms and other parts that could be more conveniently hauled than taken with the tractor. -McDonald was paid for the work done on the tractor by Lumry, the plaintiff, and it seems that he made out a separate bill to the defendant Kryzmarzick for moving the machinery amounting to about $165, which account has never been paid by the defendant and is assigned to the plaintiff in this action but not included in the complaint. McDonald purchased from the Standard Oil Company some kerosene and gasoline needed for moving the machine, and directed it to be charged“to the defendant. The defendant denies that he authorized this, but he paid the bill. When the machinery reached the defendant’s farm, the plows were hitched on and McDonald started to plow. After going about 10 rods the engine stopped. McDonald says this was because the plows were not scouring, but the defendant contends it was because the engine did not have sufficient power to pull the plows. There were not as many plows attached as the engine was supposed to be capable to pulling. The engine had thus far been run on batteries, and as McDonald was leaving he took them off to use on another engine belonging to the plaintiff. Another ignition system was later put on. At the time McDonald left the engine with the defendant, he stated