#### McCormick Harvesting Machine Co. v. Watson.

1. Under the code of this state the seller of personal property does not, except as therein specifically provided, impliedly warrant the quality of the thing sold.

2. An instruction to the jury that charging and receiving the full marketable price for a harvesting and binding machine imports a warranty by the seller that it will do as good work as other first class machines, is error.

3. The note sued upon was one given in renewal of the last of several notes originally given on the purchase of the machine, and was given after the machine had been used two seasons. The court instructed the jury that, if they found “that the machine was not worth, at the time the . note was given, more than the defendant has already paid them, your verdict must be for the defendant.” *Held,*error. The question of consideration depended upon the value of the machine, not at the time the renewal note was gived, but at the time the machine was boug'ht.

(Syllabus by the courc.

Opinion filed Feb. 14, 1894.)

Appeal from circuit court, Roberts county. Hon. J. 0. Andrews, Judge.

Action on a promissory note. There was a verdict for defendant, and, from an order denying a new trial, plaintiff appeals.

Reversed.

The facts are stated in the opinion.

*George F. Miller*and *F. V. Brown,*for appellant.

No brief for respondent.

Fuller, J.

This action is based on a promissory note for $100, which the defendant executed and delivered to the plaintiff on the 27th day of April, 1886. Plaintiff demands judgment for $100 principal and $54.30 interest according to the recital of said note. On the 10th day of August, 1884, the defendant bought a McCormick self-binding harvester, and in settlement therefor gave two notes, the aggregate amount of which was $225, and in October of that year he paid one of the notes, which, with accrued interest, amounted to $114. On the 27th of April, 1886, he paid $18 on the note remaining unpaid, and *10gave the note in suit in renewal thereof. In effect, the defendant alleges in his answer that the machine was warranted to do good work, and that, relying upon such warranty, he made the purchase, and txecuted the original notes therefor. He also alleges that the bindery was so defective in construction and material that it failed to properly bind the grain, and thereby occasioned great loss, and that said machine was not worth the sum of $225, as represented by the plaintiff, nor any sum whatever. There was a trial to a jury, and a verdict for the defendant. Plaintiff appeals from an order refusing a new trial.

In effect, the defendant testified that, at the time he purchased the machine, the agent warranted it to do good work; that he had used the machine five years, more or less; that once it broke down, and he employed one of his neighbors to help him with another binder, while he was gone to Milbank to buy extras; that there was some defect or imperfection about that part of the machine which binds or ties the grain, and that many of the bundles were not bound. He also testified that an expert in the employ of the plaintiff adjusted the difficulty during the harvest of 1885, so that the machine worked fairly well for three or four days, and then began to throw the grain occasionally. Other witnesses corroborated these statements of defendant, and from their testimony it further appears that the gearing was out of order upon at least one occasion, so that the machine could not work well. There is no evidence that defendant operated the machine with proper care, or that he notified the agent from whom the binder was purchased, save upon one occasion, that the machine was not doing good work, nor that he ever offered to return the machine to such agent, or any other agent, of the plaintiff. Defendant further testified that a certain collector, in the year 1886, promised and agreed to see that the machine was put in good order, and upon that assurance he gave the note in suit as a renewal of one of the original notes remaining unpaid at that time. To the introduction of this evidence numerous objections were interposed, *11which, are presented in the assignment of error, and which are not likely to occur upon a retrial of the cause, which we are disposed to believe should be granted, for reasons hereafter mentioned.

At the contusion of the evidence the court gave, among others, the following instructions: “Now, as a matter of law, the court instructs you that any person selling personal property in the state of South Dakota, or, to be more explicit, that in this action, at the time this plaintiff sold the machine to the defendant, he did warrant — whether anything was said about it or not — providing the full marketable price was asked and charged for the machine, and it was sold as a binder and harvester, he did warrant it to do good work; that is, such work as other good first class machines would do; that is, he warranted it to cut and bind the grain — that is all. It wasn’t warranted to thresh the grain, or to do anything else but to cut and bind the grain. That is what the machine was sold for; what the defendant bought it for. In addition this warranty which the law gives, the defendai t claims there was a special statement or warranty by this plaintiff. Whether there was or not is for you to determine. But at least, as a matter of law, there was an implied warranty that it should do good work,” It neither appears from the pleadings nor proof that plaintiffs manufactured the machine which defendant purchased, and for which the note in suit was given; and the question as to whether the plaintiff, at the time of the purchase and sale, expressly warranted the binder in any particular material to the issues in this case, was, in our opinion solely a question for the jury, uninfluenced by an implied warranty as specific as the above instruction indicates. Section 3628 of the Comp. Laws is as follows: “Except as prescribed by this article, amere contract of sale or agreement to sell does not imply a warranty.” Section 3633 is as follows: “One who sells or agrees to sell an article of his own manufacture, thereby warrants it to be free from any latent defects, not disclosed to the buyer, arising *12from the process of manufacture, and also that neither he nor his agent in such manufacture has knowingly used improper material therein.” We think, therefore, that it was error to thus instruct the jury.

The court further instructed the jury as follows: “If you should find that at the time the note .was given, that there was no consideration passed to this defendant — that is to say, that if you find that at the time this defendant, Watson, gave this note, that his machine was entirely worthless, — then, in that event, there wras no consideration for this note, and this plaintiff cannot recover; * * * that, if you find that the machine was not worth, at the time the note was given, more than the defendant has already paid, then your verdict must be for the defendant.” The undisputed evidence is that the note in suit was given on the 27th day of April, 1886, to renew one of the notes executed on the 10th day of August, 1884, at the time the machine was sold and delivered; and the defendant, by procuring an extension of time in which to pay his note, could not obtain rights that would enable him to come into court after his machine may have been worn out, or by his negligence rendered worthless, and thereby defeat the payment of such note. For the purpose of this action the consideration for the note, and all questions affecting it, including the value of the machine, relate back to the date of purchase, and the status of the parties is just as it"would have been had no renewal note been given. We are therefore of the opinion that the verdict should have been set aside, and a new trial granted. The order of the circuit court refusing a new trial is therefore reversed, and the cause remanded for a new trial.