Page:North Dakota Reports (vol. 48).pdf/526

 one in operation. On or about the 15th, an arrangement was made whereby the plaintiff was to furnish a tractor for the price of $1,025, or $20 above the list price. The defendant gave his check for $50 which the plaintiff claims was in part payment of the price, and which the defendant contends was simply an evidence of his good faith. The plaintiff was to bring the tractor from Sanish to Charlson. This he did. On the following Monday (May 19th), the defendant returned to Charlson, and he, together with a man furnished by the plaintiff, took the tractor to the defendant’s farm. Late that evening the defendant returned to the plaintiff’s place of business, and, according to the latter, reported that the tractor worked fine. ‘This is disputed by the defendant. Next day defendant Larson returned to Tioga. The testimony is altogether conflicting concerning the exact nature of the transaction, and particularly with regard to the negotiations subsequent to the delivery of the tractor, the plaintiff claiming that the defendant, after trying the machine, promised to give him a check for the balance of the price, and the defendant that the plaintiff had guaranteed that the tractor would work to the satisfaction of him and his hired man, which he claims it failed to do. The defendant, however, stopped payment on the $50 check, never paid the balance, and never returned the tractor. The plaintiff admitted that he had agreed that, if the tractor did not pull the two plows on the ground that was to be plowed, the defendant was at liberty to bring it back. The case was submitted to the jury, and a verdict returned for $1,235.

The principal assignments of error argued upon this appeal relate to the instructions of the court to the jury. It is argued that the instruc- tions did not cover the issues joined, and that they ignored or failed to properly state the law applicable to the contract if made according to the defendant’s version of the facts. Regarding the principal issue, the court instructed the jury that the plaintiff, in order to recover, must prove by a fair preponderance of the evidence that, on or about the 15th of May, 1919, he sold and delivered to the defendant the Fordson tractor and two Oliver plows, for which the defendant agreed to pay $1,025 in cash; that the defendant accepted the property, but failed to pay this sum. This was followed by a charge that, if from the evidence the jury should find that a sale was made upon approval or on trial or on satisfaction, and that the defendant signified his approval or acceptance to the plaintiff, or did any other act adopting the transaction, they should find for the plaintiff.