were sent out as mere experts in the performance of the kind of work involved in making a defective machine a good one. On what principle, then, can it be said that the company intended to waive this provision touching notice, and, in effect, intrust these important business questions to the decision of those who were not employed or sent out for that purpose. The petition for a rehearing is denied. :
(55 N. W. Rep. 580.)
John Canham vs. Plano Manufacturing Co.
Opinion filed March 21st, 1893.
Power of Agent Selling Machine to Warrant the Same.
An agent authorized to sell binders for another has power to warrant that the binders will do as good work as any other machine in the market.
Secret Restrictions—Not Binding.
His general authority to so warrant cannot be restricted as to third persons who have no knowledge of such restriction.
Holding Machine at Request of Selling Agent—Not Waiver of Right to Rescind.
Where the purchaser of a binder was induced to keep the machine by repeated promises and attempts to fix the same, made by the agent who sold the same, a return of the binder immediately after discovering that it would not work as warranted, after the last attempt to fix it, is in time to entitle purchaser to claim that he has rescinded the contract for breach of warranty promptly, within the provisions of § 3591, Comp. Laws.
After Rescission for Breach of Warranty Vendee May Sue for Value of Note.
Fahey v. Harvesting Co., 55 N. W. Rep. 580, 3 N. D. 220 (decided at this term,) followed as to liability of vendor of property sold with warranty, when the contract of sale is rescinded by vendee for breach of warranty, for the amount of a negotiable note given for purchase price, negotiated to a bona fide indorsee before maturity, although such note has not been paid.
Appeal from District Court, Richland County; Lauder, J.
