#### MATHIAS GREWER, Respondent, v. KASPER SCHAFER, Appellant.

(190 N. W. 176.)

New trial — granting new trial where verdict contrary to evidence held not abuse of discretion.

In an action upon a note for a portion of tlie purchase price of a tractor the defendant answered alleging that rescission had taken place for breach of warranty and claimed damages. Verdict for the defendant awarding damages and a new trial granted.

*Reid,*the record shows that the trial court did not abuse its discretion in granting a new trial.

Opinion filed October 10, 1922.

Appeal and Error, 4 C. J. § 2813 p. 830 n. 45.

Note. — On granting new trial where verdict contrary to evidence, see 20 R. C. L. 275; 3 K. O. L. Supp. 453; 4 R. C. L. Supp. 1349; 5 R. C. L. Supp. 1094; 2 R. C. L. 217; 1 R. O. L. Supp. 453; 4 R. O. L. Supp. 94; 5 R. C. L. Supp. 93.

Appeal from District Court, Morton County, Pugh, J.

Affirmed.

*Halpern &*Bigler, for appellant.

The question whether the offer to return the tractor was made within a reasonable time is one for the jury, and by its verdict the jury found that the offer was made within a reasonable time. Avery Co. v. Peterson (S. D.) Ill N. W. 204; B. E. Sturtevant Co. v. Le Mars Gas Co. (Ia.) 175 N. W. 338; Eox v. Boldt (Wis.) 176 N. W. 467; International Harvester Co. of America v. Thomas et al. (N. Dak.) 176 N. W. 523.

*Norton &*Kelsch, for respondent.

Where the appellant appeals from an order of the district court granting a new trial, the sole and only issue presented to the supreme court is whether or not the district court manifestly abused its judicial discretion in granting a new trial. 6 N. D. 276; Pengilly v. Case Machine Co. 11 N. D. 255; Aylmer v. Adams, 30 N. D. 514; 35 N. D. 125; Wagoner v. Bodal, 37 N. D. 794.

Birdzell, Ch. J.

This is an appeal from an order of the district court of Morton county granting a new trial. The action was brought *116upon a note for $1,225 representing a portion of tbe purchase price of a tractor. Tbe defendant answered claiming that be bad rescinded the contract of sale for breach of warranty and also claiming damages-for such alleged breach. Tbe action was tried to tbe court and a jury,, and a verdict returned finding for tbe defendant and awarding him. $200 -damages on tbe counterclaim. Thereafter tbe plaintiff moved for a new trial and tbe motion was granted.

In tbe spring of 1919 tbe defendant bought of tbe plaintiff one Happy Farmer Tractor for tbe agreed price of $1,425. Two hundred dollars was paid in cash and tbe defendant gave bis note for the balance, due October 1st, 1919. Plaintiff, through bis agent, gave a written warranty of tbe tractor to tbe effect that it would pull three-stubble bottoms in old land and two breaker bottoms in prairie land, on kerosene fuel, and undertaking that in case it should fail to ful-fil tbe warranty, tbe purchase price would be returned and tbe tractor taken back. Tbe tractor plowed about 75 acres during tbe season of 1919 and various repairs were required. In tbe spring of 1920 tbe plaintiff overhauled tbe tractor, supplying considerable new materials,, placing it in good working condition. That season tbe defendant plowed about 170 acres. On October 16th, 1920, the defendant wrote to tbe plaintiff as follows:

> *“I*do not want any trouble and will settle for tbe engine, but I would like for you to be reasonable. Tbe first year tbe engine was not in working condition and as you know you replaced tbe engine this spring and I am willing to pay interest from this spring until date of settlement. I can promise that I can pay tbe note in full as you know I have bad considerable expense.

> “I am just beginning to haul some wheat and as soon as I have some sold I will be in position to pay some on tbe note. Kindly let me know if this arrangement is satisfactory, and I think I am as reasonable with you as you were with me. I did not bring tbe engine when it did not work.”

In a memorandum opinion tbe trial judge specifically calls attention to tbe fact that tbe tractor was never actually returned; that it was sold on approval and no time fixed for tbe return if not satisfactory; that tbe reasonable time within which a contract of this character must be rescinded by reurn of tbe property, or tbe prop*117erty returned under the option in the contract, is a question of fact for the determination of the jury; but that when the goods are returned or offered to the seller they must be in substantially as good condition as when taken, making reasonable allowance for trial; also that the evidence fails to show the condition of the tractor when it was offered to the plaintiff in the spring of 1921. The court further comments upon the fact that the defendant had expressed himself as satisfied with the tractor after it was overhauled in the spring of 1920 and that he had actually agreed to pay for it in full, as shown by the foregoing letter. He stated that there was some question as to whether the defendant understood what was in the letter, but that the facts .and circumstances point strongly to the conclusion that he did know.

We are entirely satisfied from a perusal of the record that the deductions of the trial judge are well supported and that he did not err in exercising his discretion by the granting of a new trial. It is well established that an order granting a new trial will not be reversed except for a manifest abuse of discretion. See Aylmer v. Adams, 30 N. D. 514, 153 N. W. 419; Skaar v. Eppeland, 35 N. D. 116, 159 N. W. 707; First International Bank v. Davidson, 36 N. D. 1, 161 N. W. 281; Reid v. Ehr, 36 N. D. 552, 162 N. W. 903; Wagoner v. Bodal, 37 N. D. 594, 164 N. W. 147. Order affirmed.

Robinson, Grace, Christianson and Bbonson, JJ., concur.