verdict, should have been allowed. J. I. Case Threshing Machine Co. v. Smith, 18 Pac. 641; Fairfield v. Madison Mfg. Co. 38 Wis. 346.
W. E. Purcell and L. B. Everdell, for respondent.
This is not an action to enforce an executory contract of sale, nor for damages for breach of such contract but for purchase money onan exccuted sale. Fishback v. VanDusen, 22 N. W. Rep. 244; Warden v. Fisher, 4 N. W. Rep. 470; Jenkinson v. Monroe Bros., 44.N. W Rep. 1113; Smith v. Whitfield, 2S. W. Rep. 822. Where the authority and power of an agent is in writing, the writing is the best evidence. Reise v. Medlock, 84 Am. Dec. 611; Columbia Bridge Co. v. Geise, 38 N. J. L. 39; Meachem on Agency § 103.
Corliss, J. The action was brought to recover the purchase price of a binder sold by plaintiff to defendant. On the trial a verdict was directed for the plaintiff. Defendant appeals. The order for the binder was in writing. It constituted the contract between the parties. It, in substance, authorizes and requests an agent of the plaintiff's to procure for defendant a harvester and binder, describing it, for which defendant agrees to pay $120 in addition to freight, etc., on delivery of the property. The order ‘then continues as follows: “I understand that the machine referred to is sold, and that I am purchasing the same subject to the following warranty and agreement, and that the agent above named, as well as the person to whom I deliver this instrument, has no authority to add to, abridge, or to change said warranty in any manner. The warranty is as follows, to-wit: The warranty referred to states that the binder is well made of good materials, and with proper care and management is capable of doing as good work as any other machine in the market. Other provisions of the warranty will be referred to later. The execution of this order, and the delivery of the machine thereunder, were admitted.
Plaintiff having rested without proving that the binder was well made of good materials, and was capable of doing as good work as any other machine in the market, defendant moved to dismiss,
