W. J. DYER & BRO., a Corporation, Appellant, v. ARTHUR BAUER, Respondent.
(184 N. W. 809.)
Sales—in an action on note for price, evidence held to sustain verdict for defendant for breach of warranty.
The plaintiffs sue to recover the balance due on a $3,000 promissory note, given for a secondhand fotoplayer. The defense is a warranty of quality and fitness, express and implied, and a breach of the same. The jury found a verdict for defendant for $1.00. Held, that the plaintiffs have had a fair trial and that the verdict is well sustained by the evidence.
Opinion filed Oct, 11, 1921.
Appeal from a judgment of the District Court of Burleigh County; Coffey, J.
Affirmed.
F. E. McCurdy, for appellant.
Laws of 1917 chap. 202, § 15 is a re-enactment of subsection 1 of § 15 of the uniform sales act, and was not intended to apply to an executed sale of a definite, ascertained and existing article but only to executory sale. This is also the common law. Mechem on Sales, § 1346.
This same section does not apply to a second hand article. Mechem on Sales, § 1348.
Newton, Dullam & Young, for respondent.
Questions similar to the one involved in this case have been considered in the following cases: Little v. G. E. Van Slych, (Mich.) 73 N. W. 554; Buckbinder Bros. v. Valker, (N.D.) 173 N. W. 947; Ward v. Valker, 176 N. W. 129.
Robinson, J. In November, 1918, the plaintiffs, dealers in musical instruments in St. Paul, sold defendant a secondhand fotoplayer, to be used as an orchestra in his moving picture theatre at Bismarck. For the player defendant gave a note for $3,000. To secure the note he gave a chattel
