Page:North Dakota Reports (vol. 48).pdf/425

 the plaintiffs with respect to the matter, he was not at all interested in the purchase of an instrument of any particular make. He did not come to the plaintiff saying that he desired to purchase a fotoplayer manufactured by some particular firm. What he wanted and finally agreed to buy was an instrument which could be utilized for a particular purpose; and he relied upon plaintiff’s representations and superior skill or judgment as to what that instrument should be. In any event, the® record discloses that the contention that the contract of sale was for a specified article under its patent or trade name was not advanced in the trial court, and it cannot be urged for the first time on appeal.

4. I am also of the opinion that the contention that the evidence furnished no proper basis for a computation of damages may not be raised at this time. It is true that the questions propounded to the witnesses as to the value of the instrument were couched in the present tense; that is the witnesses were not asked as to the value of the instrument at the time of the purchase, but were asked as to the then value. The defendant testified that the instrument could be used as a piano, but that the attachments were of no value, and that, used as a piano,’ it was worth $500. Another witness for the defendant testified that the instrument in its then condition was valueless. These witnesses were both present at the time of the installation of the instrument, and had more or less to do with its operation and repair during the entire period it was in the hands of the defendant. Their testimony was not objected to on the ground nov urged. The only objection urged to the testimony of either witness in the trial court was that the witness had not been shown to be qualified to testify as to value. No objection was made on the ground that the evidence related to the value of the instrument at the time of the trial, and that it should relate to the value of the instrument at the time of the purchase. The objection now made could readily have been obviated, if it had been presented at the time of the trial, and manifestly the plaintiff cannot at this time object to the evidence on grounds different from those raised in the trial court. It would also seem that no particular harm could result from the questions as propounded. Whether a particular article is fit for a specified purpose can generally be determined only after trial or an attempt to apply it to the intended use. While the questions propounded to the witnesses as to the value of the instrument in controversy were in the present tense, and the answers related to the then value of the instrument, it would seem that this testimony, if true, also