the condition that the money was deposited with Cooper pending the trial of the machinery by five days' use thereof, which machinery was to be tested by such use by plaintiff, and upon his being satisfied therewith was to be kept by him; and in case of its failure to do the work for which it was purchased, it was to be returned at Maddock, and he should receive his deposit and freight money back from the agent Cooper, who in the meantime was to assist plaintiff in operating the rig, and act as a machinery expert in getting the same to do satisfactory work.

Upon trial the machinery proved defective in workmanship, design, and material, and utterly worthless as a threshing machine. Plaintiff and the agent Cooper worked with it for four days, during which time the rig thoroughly demonstrated its worthlessness. The evidence is that the machine could not be made to do the work for which it was sold, because of many reasons set forth in the testimony. Finally Cooper told Westby, "if it don't work to-morrow you can pull it in and get your money," and immediately disappeared between two days, with Westby's money, leaving Westby with the machine on his hands. Westby immediately registered a letter to the company at their head office, at Racine, Wisconsin, to the effect that "you are hereby notified that the steel separator 40 x 60, which I purchased of you on the 28th of September, 1903, has failed in quality of material and workmanship to fulfil the warranty given by you, and said separator is subject to be returned at once." Which letter was dated at Maddock and signed by plaintiff. Its receipt was entirely ignored by defendant company, although the return card shows such notice was received on October 12th by the defendant company at Racine, Wisconsin. On October 18th following, plaintiff registered a second letter to defendant company at Racine, Wisconsin, as follows. "I notified you some time ago that the steel separator purchased of you failed to fulfill your warranty. I also notified your local agents here, L. E. Foss and C. L. Cooper, but they didn't do anything; and I can't do anything with that separator, so I have hauled it in to Maddock, North Dakota, and have got another separator. I request you to refund my money and fix this up at once." This letter was also signed by plaintiff. This letter was followed by one from the company denying receipt of the first letter sent within the ten-days' period mentioned in the order, to which plaintiff replied referring to his letter of October 18th, demanding a refund

of his money and that the matter should be fixed up at once. No results following, this suit is brought, some years afterwards, to obtain the purchase price deposit and freight payment aforesaid.

The defendant company throughout the trial insisted that it was not bound by the unauthorized act of its agent Cooper, in his making the unauthorized sale; that it had never ratified the same; that the company had made the delivery under the written order, and had no knowledge of any other sale; that knowledge was imputed to the plaintiff by the terms of the order that no agent of the company had authority to change the order in any respect, or to deliver the goods until the order was signed and a settlement effected under the order and pursuant to the terms thereof; that its agent was but a sales agent, and that plaintiff had knowledge of his limited authority.

When confronted with the fact that the settlement had been for cash, admitted by the pleadings to have been received by the company, and for a different amount than was specified in the order, the company offered the original contract with the penciled discount provision therein, that it might be assumed that it had supposed the amount remitted was approximately the amount due under the contract, provided the plaintiff had availed himself of the cash discount by making cash payment, to the effect that the receipt of such money should not be presumed a ratification by the company of the contract actually made by the agent to the plaintiff. The trial court submitted to the jury, under proper instructions, the question of whether the delivery of the machinery was made under a new contract of sale, made orally between plaintiff and the agent Cooper at Maddock, or whether delivery was made under the written order; and the jury found the delivery was made under the former, thereby eliminating from consideration the contract evidenced by the order. And the jury was justified in so finding. It is doubtful if there was any issue of fact in such respect for the determination of the jury. The proof was conclusive that the buyer did not receive the property under the written order, which contract as evidenced thereby remained wholly executory, and the party who had in part performed thereunder, the company, refused further performance. The agent would not deliver the machine until security as contracted for in the order was given, and evidently for some reason best known to himself refused to allow the order to be modified in any particular. The performance of the contract then was

rendered impossible. A new contract was made between the agent and the purchaser, the property in the meantime remaining the property of the company. Under the written contract no delivery was ever made, hence no title over passed thereunder. In fact, under the new and substituted contract the machinery remained the property of the defendant, and thereunder title never passed. The money was deposited with the agent assuming to act for the company, instead of in a bank, but the money still remained, until the machine proved satisfactory, the property of this plaintiff. Had the agent embezzled the money, the company could have disaffirmed the unauthorized act of the agent and retained its machinery, as title to it never left the company. It was at the most but an agreement for sale for which the buyer could likewise, for breach of warranty, rescind the agreement. See Rev. Codes, 1905, § 5435. And the evidence shows the same was presumably done, and notice of rescission given the company, and the obligations of plaintiff from the sale to take the machinery terminated, with plaintiff's money, the subject of this action, in defendant's possession.

Defendant insists that no agent of the company had the right to make a new or substituted contract, or to alter or change the written one. This may be true; it does not affect the situation disclosed by the evidence. The parties acted under the oral contract, if at all, as no performance was had under the written one. In fact the oral contract amounted to no more than the written one, a mere contract of sale uncompleted by conditional delivery only. Nor does the act of the plaintiff in refusing to complete the written contract of sale result in its completion. The liability he would assume would be, in the absence of contract, liability for an action for damages. In the contract itself we find the measure provided for such liability. But in this action the company is not counterclaiming thereon, but instead stands or falls upon delivery or nondelivery under the written order. The right of the plaintiff to avoid the written contract is a right recognized by the fact that the contract itself has fixed and provided for a measure of damages in such case. In law every contracting party has a legal right, while it remains wholly executory, to breach a contract, being obligated to respond therefor in damages. In this instance the impossibility of performance occasioned the breach, and by no reasonable conclusion can we say that a breach of a contract operates as a performance of it.

But the defendant company contends it was lead to believe that plaintiff had performed under the written contract; that the plaintiff was aware of the limited authority of its agent, and that the company was lead to accept the money in ignorance of the real contract, and supposedly in ratification of a discount for cash under the written contract. This does not alter the situation; it does not and cannot change the fact. This corporation, like all corporations, could act only through some agent. It has acted, if at all, through an authorized agent, perhaps in a way unauthorized by the corporation; but the fact remains that the dealings of the parties made a new contract capable of ratification, under which delivery was made, and the delivery never was made under the written one; and the company must at its peril choose upon which contract it will rely. The parties make the contracts, not the courts. The courts cannot change title to property with resulting liability therefrom, merely because an agent has acted in excess of his express authority. The Code provision still remains of the same effect, that is, that so long as the contract remained executory, no title to the property passed until the buyer accepted it. N. D. Rev. Codes, 1905, §§ 4990, 4992. Nichols & S. Co. v. Paulson, 6 N. D. 400, 71 N. W. 136; Colean Mfg. Co. v. Blanchett, 16 N. D. 341, 113 N. W. 614.

This case is covered on all points by Colean Mfg. Co. v. Blanchett. The order and all the principal facts are identical in that and this case. Of the two the instant case is the stronger, in that the proof as to a separate oral contract providing for trial of the machine prior to its acceptance and payment therefor is undisputed, while such facts were in dispute in the case cited. In that case the testimony was in conflict as to whether the machine fulfilled the warranty, but in this its worthlessness is beyond question. Appellant, to escape the force of the Blanchett Case, argues that in said case Blanchett had insisted on the written order containing a provision for trial in advance of acceptance of the machine, and that to such extent the order did not evidence the contract, and because thereof, the court went behind the written contract and based its decision on the oral negotiations leading up to the written order; while in the case on trial plaintiff is suing on an oral contract made after the written order, and that accordingly Colean Mfg. Co. v. Blanchett is not authority in the instant case. Such is defendant's analysis of the case quoted,—but a careful examination

of the opinion shows the contrary. We quote therefrom as follows: "We do not deem this a very material question as we are satisfied that an oral contract was made after the written order was signed, but before the sale became completed by a delivery of the machine thereunder." "The machine was not accepted by defendant under the written order; it was accepted under a new and independent contract." "In this case, however, the written order was not complied with at all, but repudiated, for the reason that defendant claimed that he had a right under the original negotiations to test the working of the machine. Upon defendant's repudiation of the order, a new contract was entered into, and the defendant was given the right to do what he claimed should have been included in the written order." Then again, from the above case on the question of the authority of the agent to make such new and independent contract in the face of a provision in the written contract remaining unexecuted, as in the case on trial, we quote the following: "The question as to the authority of the agents to modify the written order does not therefore become relevant or material in this case. So far as delivery of the machine is concerned, it never became binding on defendant under the written order, as delivery was made under another contract." In the case cited the court refers to the former decision of Nichols & S. Co. v. Paulson, 6 N. D. 400, 71 N. W. 136, a case in which a conditional delivery was made. by the local agents not in performance of the contract, but on their own responsibility, in which a similar claim of want of authority on the part of the agent to so act was made, as follows: "Such delivery was, of course, conditional and passed no title. Plaintiff insists that the local agents were, to the knowledge of Spearing, unauthorized to make such conditional delivery. This may be granted; it may be true that plaintiff might have retaken the outfit immediately upon such delivery. But that fact could not convert the conditional delivery which was made into an unconditional delivery that was not made. It could not cast upon the buyer title to property that he refused to accept." For another parallel holding from the supreme court of Minnesota, see Hicks v. Aultman Engine & Thresher Co. 108 Minn. 327, 122 N. W. 15, for the same cause of action, under the same claims by the respective parties, in all respects as is the case on trial. Relative to the provision in the written contract against its alteration or the substi