to do something to the goods for the purpose of putting them in a deliverable state, that is, into a condition in which the buyer is bound to accept them unless a different intention appears; the property does not pass until such thing is done. Simpson v. Perfett, 36 N. D. 526; 162 N. W. 900.
Since the property was not as warranted, which is a fact found by the court, it was a bar to recovery for the purchase price. Simpson v. Perfett, 36 N. D. 526; 162 N. W. 900; Holbert v. Weber, 161 N. W. 560 (N. D.); D. M. Osborn & Co. v. Martin, 56 N. W. 905, (N. D.).
And no recision is necessary. Nat’l Cable Mfg. Co. v. Filbert, 140 N. W. 741, (S. D.); 13 C. J. 619.
J. E. Nelson, for respondent.
Birdzell, J. This is an appeal from a judgment in favor of the plaintiff and from an order denying the defendant’s motion for a new trial. The action is one to recover the purchase price of a secondhand gasoline tractor plowing outfit alleged to have been sold and delivered to the defendant in the spring of 1919. It was tried to the court without a jury. The facts are as follows:
The plaintiff is a-dealer in implements at Garrison, N. D.; the defendant, a farmer living in the vicinity. In the fall of 1918, the defendant, being prospectively interested in the purchase of a tractor for the following year, talked with the plaintiff concerning the purchase of a 1912 model 45 horse power Mogul tractor which the plaintiff owned. The tractor had been acquired secondhand and was then located 8 or 9 miles south of Douglas upon the plaintiff’s farm and some 25 or 30 miles distant from the defendant’s farm. They also talked of the purchase and sale of a 10-bottom lever lift Oliver engine plow which was at the time situated at Roseglen, about 16 miles from the location of the engine. The plaintiff and defendant went to look at the engine. It had not been used that year, but the plaintiff stated, in answer to a query as to whether it would run, that one McDonald, who had previously run it for the plaintiff, said that he could start it in 15 minutes. The defendant inspected the machine particularly with reference to its bearings which, in his opinion, were not badly worn. Negotiations were renewed in February or March of the following winter, and some time in March an agreement was reached whereby the defendant agreed to pay $1,600 for the engine, the plows, and a cook car; the plaintiff agreeing to turn,the engine over to the defendant
