Page:North Dakota Reports (vol. 48).pdf/528

 stated to the jury that they should not return a verdict for the plaintiff unless he had proved the contract, as alleged by him, accompanied by such condition or warranty as they believed the evidence supported, and that such condition or warranty had been fulfilled or treated as fulfilled by the defendant; and that, if the transaction was as contended for by the defendant, they should bring in a verdict in his favor, if he was honestly dissatisfied with the tractor.

It is claimed that palpable error was committed in that part of the instruction in which the court told the jury that, where a purchaser agrees to keep and pay for goods on condition that they work satisfactorily to him, he cannot arbitrarily say that he is not satisfied with the goods, “but there must be some actual breach of warranty in the property upon which the buyer bases Mis refusal to accept the goods,” and the case of Garland v. Keeler, 15 N. D. 548, 108 N. W. 484, is relied upon. That case is authority for the rule that, where a vendor agrees that the property sold shall work satisfactorily to the purchaser, the contract is not fulfilled unless the purchaser is actually satisfied, and that it is not sufficient that the article would satisfy an ordinary man. In the instruction before us the reference in this connection to breach of warranty in the property might be considered as more or less unfortunate, but in our opinion it could not have prejudiced the defendant, for in the immediately following sentence the rule intended to be stated was put in other language which rendered the meaning clear beyond a doubt. The court stated: “In other words, the buyer must act honestly in his refusal to accept and keep the goods.” That is the essence of the whole of the preceding statement, and it does accord with the law. The case of Garland v. Keeler, supra, recognizes this rule in connection with the actual satisfaction rule applied in that case. It is the law that, where satisfaction is contracted for the buyer cannot escape obligation by an arbitrary declaration that he is not satisfied. There must be honest dissatisfaction.

It is said that the court, in instructing or attempting to instruct upon the defendant's theory of the case, erroneously imposed as a condition of finding for the defendant that the jury should find that previous to the trial no terms had been agreed upon. It is pointed out that this is contrary to all of the evidence, and that the defendant was prejudiced by the requirement that the jury must so find a condition contrary to the undisputed facts before they could render a verdict for the defendant. We do not believe that a jury would so construe the clause in question. This