2 North Dakota Reports
guaranty contract, and where it appears that there is evidence that the stallion was not a 50 per cent foal getter, that the purchaser reported such fact to the agent who sold such stallion, and the agent thereupon advised the purchaser to keep the horse and try him another year, and that he would ship up another horse in exchange therefor, the agent possessing the authority so to make an exchange –– it is held that the questions of the utility of the stallion under the contract, and the authority of the agent, were questions of fact for the jury; and that the trial court erred in directing a verdict against the defendant.
Opinion filed November 29, 1919.
Action on promissory notes given for the purchase price of a stallion. From a judgment in District Court, Burke County, Leighton, J., directed for the plaintiff, the defendant has appealed. Reversed and new trial granted. E.R. Sinkler, for appellant. The motion made for a directed verdict in this case is in the nature of a demurrer to the evidence, and therefore all fair inferences from the evidence must be drawn in favor of the party against whom such verdict is directed. Miller v. Klovstad, 14 N. D. 435; Schantz v. Northern P. R. Co. (N. D.) 173 N. W. 556. A. M. Thompson and Greenleaf & Wooledge, for respondent.
BRONSON, J. This is an action on two promissory notes for the purchase price of a stallion. The trial court directed a verdict. The defendant has appealed from the judgment entered thereupon. In June, 1910, the defendant purchased a Shire stallion from one Holbert, of Iowa, under a guaranty contract. Such contract guaranteed all stallions serviceable and breeding stallions; also that if the stallion should not prove himself a 50 per cent foal getter, after a fair trial, on sure breeding mares, the purchaser should return him to Iowa and receive another horse of equal value that is supposed to be sure. Further, that the purchaser contracted that such stallion should be well handled and kept. Further, that the vendor should not be bound by the conditions of the guaranty unless the purchaser submitted a monthly report during the season, in writing, showing the condition of the horse and number of mares tried and reserved each
