tachments.” ‘Phe machine was installed in January, 1919, and in about a year and a half defendant ceased attempting to use it. Mr. Bauer testifies that during the first year it was used about four or five months, and the rest of the time was out of order. He says the machine is of no value only the piano part, which is worth about $500. ‘The testimony of Mr. Bauer is well corroborated by his wife and by Mr. Hoffman, a piano tuner who worked on the player trying to put it’ in order.
Mr. Roth, the expert who installed the player, and who overhauled it four times, testifies that on each occasion he left it in good working order and mechanically perfect. He attributes the failure of the player to defects in its operation, and doubtless there were defects in the operation as well as in the complicated machine. Defendant and his help were fairly able to operate the machine till it got badly out of order, and then he had to send for the expert to overhaul it. So it is with a farmer of ordinary skill; when he buys a new machine it commonly runs well and he finds it easy to operate, but as it commences to get badly out of repair the operation becomes more and more difficult. The machine in question was second-hand. It is probable that because of some failure in operation the plaintiffs had taken it back from the first purchaser. But, to induce the defendant to buy it, they assured him that they were going to build in their own shops important missing parts of the player, and promised him the same guaranty as with an entirely new instrument. The player was sold with both an express and an implied warranty of fitness for use in a theatre.
Here is a copy of two letters written to induce the defendant to purchase the player:
Mr. A. J. Bauer, care Orpbeum Theatre, Bismarck, No. Dak.—Dear Sir: We are very much surprised to learn through our Mr. Hough that you have entirely given up the idea of purchasing a fotoplayer because of your desire to dispose of your theatre.
We honestly believe, Mr. Bauer, if you were to install one of the genuine fotoplayers in the Orpheum Theatre, it would prove a sensation that would be the talk of the country for miles around and would, undoubtedly, result in increasing your business and your profits. We trust that you will reconsider this matter and let us get together on a proposition. We have known of cases where business was so poor that the owner of
