#### ERICK ANDERSON, Respondent, v. C. *M.*HANSON, Appellant.

(204 N. W. 669.)

Sales —turning over property in pursuance of agreement for which consideration had heen paid, held not to entitle plaintiff to recover.

1. In an action to recover tlie sale price of many articles of personal property, where the .plaintiff admits that all of the property was turned over to the defendant on his demand, and that in consideration therefor the defendant turned over to the plaintiff his note for $6574.82 and chattel mortgage securing the same, and gave to plaintiff a written guarantee to pay certain indebtedness of the plaintiff amounting to $1700, and where plaintiff gave to the defendant a hill of sale of all of said property and the defendant paid the indebtedness guaranteed, the turning over of said property by the plaintiff to the defendant was a part of the consideration and the plaintiff is not entitled to recover.

*747Sales — bill oí sale, covering' all tools on premises of every name ancl nature, held to include manure spreader.

2. In a bill of sale conveying many kinds of farm machinery used and neees-sary on a farm for the cultivation thereof, the clause “all tools on the premises, of every name and nature” includes a manure spreader.

Opinion filed June 5, 1925.

Compromise and Settlement, 12 C. J. § 81 p. 366 n. 56. Sales, 35 Oye. p. 99 n. 31. Tool, 3S Cyc. p. 406 n. 15, 18, 21.

Appeal from the District Court of Burke County, Lowe, J.

Reversed and new trial granted.

*Palda &*Aalcer, for appellant.

*¿tinkler &*BreTelee, for respondent.

Where there is a conflict in the testimony and the jury resolves the issue in favor of one of the parties, the court will not interfere, if there is any evidence to sustain the verdict of the jury. Montana East 11. v. LeBeek, 32 N. D. 162; Northern Trust Co. v. Bruegger, 35 N. D. 150; Skogness v. Seger, 35 N. D. 366; Clark v. Ellingson, 35 N. D. 546; Oakland v. Nelson, 28 N. D. 456; Riekel v. Sherman, 34 N. 1). 298; Blackorby v. Ginther, 34 N. D. 258.

Burke, J.

The plaintiff claims, in the first cause of action in his complaint, that on the 14th day of November, 1921, he sold and delivered to the defendant certain personal property described in the complaint, of the reasonable value of $'7539.00. In his second cause of action he claims that during the year 1921 he summer-fallowed 350 acres of land of the value of $1050.00. In his third cause of action he claims that the defendant owes him the sum of $150.00 for board. In his fourth cause of action he alleges that the plaintiff collected, during tiro years of 1920 and 1921, hail insurance in the sum of $1126.00 upon lands which the plaintiff claims to have farmed for the defendant and that he is entitled to one-half of the said amount, amounting to $563.00, with interest. In his fifth cause of action he alleges that the defendant is indebted to him for six teams of horses which he claims to have furnished to the defendant for work on a threshing rig in 1921 for .18 days, at. the rate of $2.00 per day per team, and he asks judgment against the *748defendant for the sum of $7539 with interest at 6% from the 14th day of November, 1921; for $1050 with interest at the rate of 6% from the 1st day of September, 1921 ; for the sum of $150 with interest at the rate of 6% from the 1st of November, 1921, and for the sum of $563 with interest at the rate of *6%*from January 1st, 1921, and for the sum of $91.00 with interest at *6%*from November 1st, 1921.

The defendant answers claiming that there was a full and complete settlement and an adjustment of all claims of every name, nature and description between the plaintiff and defendant on the 14th day of November, 1921; and that all the goods, wares and merchandise set forth in the first cause of action were transferred to the defendant by the plaintiff by a bill of sale; that on said date the plaintiff was indebted to the defendant in large sums of money exceeding the value of the property and for and in consideration of the defendant’s release of claims against the plaintiff and assuming and paying the claims of certain other parties and persons agreed upon between plaintiff and defendant, such settlement and transfer of all property was made.

At the close of the testimony the plaintiff dismissed the fourth cause of action, relating to hail insurance, and on motion of the defendant the second cause of action, relating to summer-fallowing, was dismissed. A motion to dismiss the fifth cause of action was denied and a motion to dismiss the entire and all the causes of action was denied. A motion to strike out all the testimony in reference to bundle oats or value thereof was denied. The defendant then moved for a directed verdict which was denied.

The court submitted to the jury the claim of the plaintiff for six teams of horses for 18 days at $2.00 per day, 100 bushels of oats, 35 chickens, one manure spreader, 7 pigs, and 15 loads of oats bundles. The jury returned a verdict for the plaintiff and against the defendant for the sum of $600.00. Thereafter on notice a motion was made for judgment notwithstanding the verdict or for a new trial, which motion was also denied and the defendant appeals to this court from the judgment and order denying defendant’s motion for judgment notwithstanding the verdict or for a new trial and specifying as errors the overruling 'of the defendant’s motions to dismiss and his objections to, and motions to strike out, testimony.

The evidence shows that on the 5th day of January, 1917, the plain*749tiff and tbe defendant signed a lease by tbe terms of' wbicb tbe plaintiff agreed to farm for tbe defendant 800 acres of land in tbe county of Burke and state of North Dakota for tbe years 1918, 1919, 1920, 1921, and 1922. At tbe same time defendant sold and delivered to tbe plaintiff borses and machinery amounting to $5,600 and paid to tbe defendant $3,225.00. Under and by tbe terms of said contract tbe plaintiff farmed tbe lands during tbe years 1918, 1919, 1920, and 1921. On tbe 22nd day of September, 1921, there was a settlement between tbe plaintiff and tbe defendant in which it was found that tbe plaintiff owed tbe defendant $6,574.82. A note was given for tbe amount and it was secured by a chattel mortgage, Exhibit “5.” In November of tbe same year, tbe plaintiff states in bis testimony, be bad no money and being unable to go on with bis contract be and bis brother-in-law went to the defendant and told defendant that if be would give him back all bis paper and ’assume certain indebtedness that be would turn tbe farm and stock all back to tbe defendant; that be could not farm it any longer. Defendant said “all right” but wanted him to say so in front of witnesses. The plaintiff says repeatedly that the defendant promised to have a subsequent settlement but be also states repeatedly that, before tbe defendant would return bis paper and agree to guarantee tbe pay-», ment of some $1,100 that tbe plaintiff owed on machinery, be insisted on having everything on tbe farm turned over to him and tbe witness says that be understood that everything was to be turned over to tbe defendant at tbe time be signed tbe bill of sale and when tbe plaintiff left tbe farm be left everything there and later brought this- action against tbe defendant claiming that certain personal property left on tbe place was not included in tbe bill of sale although be admits that tbe defendant demanded all of it and insisted on getting all of it before be would sign tbe guarantee and return tbe papers. After tbe bill of sale was executed tbe defendant turned over to tbe plaintiff bis personal note for $6,514.82 and a guarantee that be would assume and pay certain debts of tbe plaintiff amounting to about $1700. Tbe plaintiff claims that be left a manure spreader, 7 pigs, 100 bushels of oats in bin, 15 loads of oats bundles, and 2 bundles of wire on tbe farm that were not mentioned in tbe bill of sale. But all of this property was on tbe place when tbe defendant demanded, and received, 'all of tbe property’ and it was on tbe place on tbe 22nd day of September when tbe plain*750tiff executed tbe chattel mortgage to .secure tbe $6,574.82, and is .specifically mentioned in tbe mortgage.

Since tbe defendant demanded “all tbe property” before be would turn over the note and mortgage, and sign tbe guarantee, everything upon tbe place was a part of tbe consideration for releasing tbe plaintiff from bis farming contract, for returning bis note and guaranteeing the payment of some $1700 of other debts, and while tbe bill of sale does not specifically mention tbe manure spreader, it does say “all tools on tbe premises of every name and nature.”

Webster’s Dictionary defines “tool” as follows:

> “An instrument of manual operations, as, a hammer, saw, plane, file or tbe like, used to facilitate mechanical operations as distinguished from an appliance moved and regulated by machinery; any instrument used by a craftsman or laborer at bis work; implement. In a wide sonso ffool’ may be used to include almost any implement or object used in performing an operation or carrying on work of any kind, •especially where tbe implement or object is used or worked by band and is movable, as distinguished from power-driven machinery, etc. In this use, as in statutes exempting instruments of earning a livelihood, in engineering contracts, etc., ‘tool’ has been held to designate books, a horse and wagon, a piano, a band-(or foot-) power printing press, a sowing-machine; a floating piledriver and a scow. In law, any instrument or appliance necessary to a person in tbe efficient prosecution of bis'trade or calling, according to the regular decisions, tbe tools of a mechanic include anvils, vices, saw-horses, a barber’s chair and mirror, a photographer’s bead-rest and, in certain cases, a doctor’s equipage are tools necessary in their respective callings.”

Tbe term “tool” includes a sewing-machine. Rayner v. Whicher, 6 Allen, 292. It includes a press and paper cutter owned by a job printer and necessary for bis business. St. Louis Type Foundry v. Taylor, (Tex. Civ. App.) 35 S. W. 691. Tbe safe used by a jeweler and watchmaker. Re McManus, 87 Cal. 292, 10 L.R.A. 567, 22 Am. St. Rep. 250, 25 Pac. 416. A sled used in drawing wood and timber is a tool of bis occupation. Parshley v. Green, 58 N. H. 271, 272. A piano is a tool necessary to a music teacher. Amend v. Murphy, 69 Ill. 337.

We are of tbe opinion that under tbe evidence in this case the manure spreader is covered in tbe clause in tbe bill of sale “all tools on tbe *751premises of every name and nature” and that the court erred in not sustaining the objections of the defendant to the introduction of the testimony in relation to the manure spreader.

The plaintiff also claims that there were 1500 bushels of oats in the bin and that the bill of sale only covers 1400 bushels of oats and he asked for the value of 100 bushels of oats. He testifies, however,' that the oats was all in one bin and that when the defendant was demanding everything that was on the place that they estimated the oats in the bin at 1400 bushels and that the bill of sale covered all the oats in the bin. He says he never measured the oats but he thought that by weight there would bo 1500 bushels and that is the basis of his claim. From the plaintiff’s own testimony it appears that the oats in this bin were all turned over and was a part of the consideration of the settlement. He also says he turned over 15 loads of oat bundles. The court asked him why they were not threshed. He answered: “Because they were going to be fed to the cows through the winter.” He is then asked, — “As hay, ■wasn’t it ?” He answered, “Yes.” This was a part of the feed or hay to be fed to the cows during the winter and the bill of sale specifically says, “all hay and straw on the premises owned by the second party.’’ (The defendant being the second party and this property all being on defendant’s land.) The court erred in overruling defendant’s objection to the testimony in relation to the hay.

The plaintiff claims that he furnished to' the defendant 6 teams of horses on a threshing rig in 1921 for a period of 18 days at $2.00 per day but later, in his testimony, he admits that the defendant did not hire the teams from him but that they were hired by a Mr. Watson who has purchased the threshing rig from the defendant and' was running it under his own supervision. Mr. Watson paid the plaintiff $60.00 on account of the work of said horses and the testimony does not show that the defendant was obligated in any way to pay for the use of 'tire horses on the threshing rig owned and operated by Watson. The defendant, however, owed Watson for threshing and the plaintiff owed his brother-in-law Conrad Berg the sum of $130.00 on a mechanic’s lien and by mutual agreement the defendant, instead of paying Watson for the threshing, paid Conrad Berg $130.00, the amount of his claim against the plaintiff and for which he claimed a lien’. The plaintiff states in his testimony that this arrangement was made after the defend*752ant bad taken all the stuff back and again states that it was after the threshing was done and the threshing rig had been pulled in. It is quite clear that the defendant is not liable to the plaintiff in any sum whatever in connection with the hiring of the teams for work on the threshing rig and the court erred in overruling the defendant’s objections to the testimony.

Nor the errors specified the judgment of the lower court is reversed and a new trial granted.

Ci-iRistiaNSON, Oh. J., and JohNsoN, Birdzell, and Nuessle, JI., concur,