Page:North Dakota Reports (vol. 48).pdf/420

 W. J. DYER & BRO., a Corporation, Appellant, v. ARTHUR BAUER, Respondent.

Sales—in an action on note for price, evidence held to sustain verdict for defendant for breach of warranty.

The plaintiffs sue to recover the balance due on a $3,000 promissory note, given for a secondhand fotoplayer. The defense is a warranty of quality and fitness, express and implied, and a breach of the same. The jury found a verdict for defendant for $1.00. Held, that the plaintiffs have had a fair trial and that the verdict is well sustained by the evidence.

Appeal from a judgment of the District Court of Burleigh County; Coffey, J.

Affirmed.

F. E. McCurdy, for appellant.

Laws of 1917 chap. 202, § 15 is a re-enactment of subsection 1 of § 15 of the uniform sales act, and was not intended to apply to an executed sale of a definite, ascertained and existing article but only to executory sale. This is also the common law. Mechem on Sales, § 1346.

This same section does not apply to a second hand article. Mechem on Sales, § 1348.

Newton, Dullam & Young, for respondent.

Questions similar to the one involved in this case have been considered in the following cases: Little v. G. E. Van Slych, (Mich.) 73 N. W. 554; Buckbinder Bros. v. Valker, (N.D.) 173 N. W. 947; Ward v. Valker, 176 N. W. 129.

, J. In November, 1918, the plaintiffs, dealers in musical instruments in St. Paul, sold defendant a secondhand fotoplayer, to be used as an orchestra in his moving picture theatre at Bismarck. For the player defendant gave a note for $3,000. To secure the note he gave a chattel