Page:North Dakota Reports (vol. 48).pdf/262

 was an acceptance of the engine by the defendant. While the testimony is not harmonious on the subject as to where delivery was to be made, it is notable that the plaintiff testifies to no particular conversation with reference to this subject; his testimony consisting largely of the conclusion that he was to make delivery upon his place. The defendant testifies specifically that the agreement was that the engine was to be delivered to him upon his farm in fair working condition for plowing. It is to be noted in this connection that the engine was taken to the defendant’s place by the man whom the plaintiff had employed to repair it. These repairs must have been somewhat extensive, for they required at least eight days of the time of the repair man and the helper. It is a matter of some significance, too, that though this repair man was working for wages at different jobs, he never pressed his claim upon the defendant, but assigned it to the plaintiff, and the plaintiff has not seen fit to include it in this action, though it amounts to about $165. The trial court laid stress on the fact that the defendant paid for the kerosene and gasoline that had been charged to him as showing that the moving of the engine was his obligation. To our minds. this is not a strong circumstance, as the amount involved would be so small that the defendant might not care to protest its payment. The plaintiff, it must be borne in mind, had the burden of proof upon this question of delivery, and with the evidence in the condition it is, we are of the opinion that this burden was not sufficiently sustained.

The evidence, however, is conflicting, and the trial court found in favor of the plaintiff. It might therefore be reasonably urged that we should not disturb the finding of the trial court. Even though superior weight be given to the opinion of the trial court, in so far as credibility is involved, still we are of the opinion that the judgment is erroneous; for, in view of the facts which are clearly established, the case does not properly turn upon the technical circumstance as to where delivery was to be made or as to who was to pay the expenses of moving. Admittedly the engine, at the time it was moved, was not equipped with an ignition system. The plaintiff admits that he agreed to install the magneto in proper working condition or furnish a new Atwater-Kent system. Up to the time the machine was left on the defendant’s place neither had been supplied, and consequently there was lacking a vital part of a gasoline or kerosene engine. It had been moved with batteries belonging to the plaintiff, and these were promptly taken for use on another of plaintiff's engines. By the time an ignition