Page:North Dakota Reports (vol. 48).pdf/530

 to the seller and recover any portion or part of the purchase price, if he had paid the same.”

“You are further instructed that, where an agreement is made where- by a party is to take goods on trial, and is to keep said goods and pay for the same only upon condition that they work satisfactorily to the buyer, the buyer 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 his refusal to accept the goods, or his claim that the same are not satisfactory to him. In other words the buyer must act honestly in his refusal to accept and keep the goods.”

In our opinion such instructions were erroneous and the giving of them was prejudicial reversible error. In this case there was no contract of warranty as that term is usually understood. If defendant’s version of the contract be true—that the tractor and machinery purchased were to work to his satisfaction and to that of his hired man—then the contract was much broader than that of warranty. It was an entirely different contract and the law of warranty did not apply to it, hence, it was error in the court to have given the instructions on warranty, where the court gave the jury to understand it was the defendant’s duty to re- turn the tractor and plows or to offer to return them, after first having rescinded the contract. If the contract were as defendant claims, he was not required to return or offer to return or to rescind the contract if he were dissatisfied ; all that was necessary for him to do was to inform defendant that he was not satisfied or that they were not satisfied.

There is sufficient evidence in the record to show that he did so in- form plaintiff and also to show that the machinery did not do its work properly so that assuming the truth of defendant’s testimony in this respect, there was a basis for his dissatisfaction. Under the instructions the defendant not having returned or offered to return the machinery, it is not improbable that this under the foregoing instructions was the turning point in the case and that on account of this the jury found in favor of plaintiff, whereas it ts plain defendant was under no obligation to re- turn or offer to return the property. The only instruction in this branch of the case proper to be given was that if the jury believed from the evidence that defendant was honestly dissatisfied with the tractor and plows, then the jury should find in his favor. The instructions as given was highly prejudicial and did not state the law applicable. Garland v. Keeler 15 N.D. 549, 108 N.W. 484; McCormick Harvesting Machine Co.