Page:North Dakota Reports (vol. 48).pdf/421

 mortgage on the player. The purpose of this action is to recover the balance due on the note and to foreclose the mortgage. The defense is a breach of warranty. The jury found in favor of defendant and against the plaintiffs and assessed defendant’s damages at $1.00.

The evidence was conflicting. The jury heard it all and found, in effect, that defendant had paid for the old player all it was worth, and more too. The payments and freight amounted to about two-thirds of the purchase price. The answer avers that at the time of contracting to purchase the player defendant was the proprietor and manager of a picture theatre at Bismarck, as the plaintiffs well knew ; that to induce defendant to purchase the instrument plaintiffs represented and warranted that it would play several musical instruments and furnish good orchestral music for the theatre; that it was in all respects suitable for use in the theatre and that its use would make the theatre a success. The defendant knew nothing of such instruments and he bought the same relying on the representations and warranty ; that the player was not suitable for theatrical purposes ; it easily got out of order, did not give satisfaction and was not worth over $500. Now it appears that defendant had never seen a fotoplayer and knew nothing of such an instrument and that he relied on the warranty of quality and fitness, express and implied. He bought the player for a particular purpose, known to the plaintiffs, and he bought it relying on their representations and judgment. The deal is covered by the Sales Act (Laws 1917, c. 202, § 15):

“* * * Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies upon the seller’s skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for that purpose.”

The testimony showing the defects and the failure of the player is oral, and is quite extensive. The player represents a variety of musical instruments. It is a complicated machine. The testimony is that after it was installed by the expert it ran well enough for a while, and in about two or three weeks it started to get out of order. The expert from St. Paul was called. He overhauled it and for a time it ran along, and then got out of order, so the expert had to be called again and again to overhaul the player, and it kept going from bad to worse. The result was a continual discord. “It was awful,” says Mr. Bauer. ‘We could not use the instrument, and we played the piano by hand without the at-