"All vacancies, except in the office of a member of the legislative assembly shall be filled by appointment as follows.

"2. In county and precinct offices, by the board of county commissioners, except vacancies in such board.

This section, however, must be read in connection with § 683, Comp. Laws (defining vacancies), which reads:

"Every office shall become vacant on the happening of either of the following events:

"1. Death of the incumbent.

"2. His insanity judicially determined.

"3. His resignation.

"4. His removal from office.

"5. His failure to discharge the duties of his office, when such failure has continued for sixty consecutive days, except when prevented from discharging such duties by sickness or other unavoidable cause. "6. His failure to qualify as provided by law.

"7. His ceasing to be a resident of the state, district, county or township in which the duties of his office are to be discharged, or for which he may have been elected.

"8. His conviction of a felony or of any offense involving moral turpitude or a violation of his official oath.

"9. His ceasing to possess any of the qualifications of office prescribed by law.

"10. The decision of a competent tribunal declaring void his election or appointment."

It will be observed that a vacancy, as defined by the foregoing section, did not exist in the office of election inspector in the different election precincts in the city of Bismarck.

The only express legislative authority to a board of county commissioners to appoint election inspectors is granted by § 952, Comp. Laws 1913, which provides that the county commissioners shall appoint such inspectors in precincts "consisting of unorganized townships."

The policy and intent of the legislature as manifested and declared by these statutory provisions is that the inspector of election in any election precinct situated within organized townships, villages, or cities, should be either the local official designated by the legislature, or in case such official was disqualified, or the legislative designation

inapplicable, that then the inspector should be appointed by some local officer or officers. We are unable to find anything to indicate that the legislature ever intended that the county commissioners should select election inspectors in election precincts situated within organized townships, villages, or cities.

We are next confronted with defendants' second contention, that the power to appoint such election inspectors is vested in the city commission, and not in any one member thereof selected by lot. It is pointed out that this is in harmony with the general policy and intent of the legislature as manifested by the election laws, as well as by the laws applicable to, and the conditions created in, cities operating under the commission system. There is much in this argument that appeals And while we are by no means satisfied that the legislature has spoken on the subject at all, we are of the opinion that if any intent has been expressed by it, that it is in accord with this latter contention. The trial court's decision is reversed and the proceeding ordered dismissed.

to us.

GAS TRACTION COMPANY, a Corporation, v. J. H. STENGER.

(159 N. W. 32.)

Warranties

implied - breaches of evidence

defenses

- express counterclaims. Evidence examined and held that, for reasons stated in the opinion, defenses and counterclaims based upon alleged breaches of express and implied war

ranties have not been established.

Opinion filed August 10, 1916.

From a judgment of the District Court of Richland County, Allen, J., defendant appeals.

Affirmed.

J. A. Dwyer and Wolfe & Schneller, for appellant.

The whole contract is an example of rare ingenuity, and comes very

near being inherently fraudulent on its face, and void as against public policy. The defendant was an unsuspecting purchaser. He relied upon what the agent said and read to him, and supposed that the instrument he signed contained just what the agent had read to him. This agent was a soliciting agent of the plaintiff, to get this application signed, and to make this sale, and he had undoubted authority and power to represent to defendant that what he read was just what the paper contained. Johnson v. Dakota F. & M. Ins. Co. 1 N. D. 167, 45 N. W. 799.

It is the established law of this state that unless the paper expressly cuts off all warranties, it must be construed as applying solely and only to warranties by contract between the parties, and as not applying to warranties implied by law. Northwestern Cordage Co. v. Rice, 5 N. D. 432, 57 Am. St. Rep. 563, 67 N. W. 298; Hooven & A. Co. v. Wirtz, 15 N. D. 477, 107 N. W. 1078.

Lawrence & Murphy, for respondents.

Justice is nothing more or less than conformity to some obligation law, and all human actions are either just or unjust as they are in conformity to or in opposition to law. Borden v. State, 11 Ark. 519, 54 Am. Dec. 217; Minnesota Thresher Mfg. Co. v. Lincoln, 4 N. D. 410, 61 N. W. 145.

Courts cannot annul or construe away an agreement otherwise legal, on the sole ground that in its enforcement it operates harshly in a given case which is presented for determination. Minnesota Thresher Mfg. Co. v. Lincoln, supra; Aultman & T. Machinery Co. v. Runck, 23 N. D. 579, 137 N. W. 831.

Defendant having elected to affirm the contract, he must now, after four years, abide by it. Sturtevant Mill Co. v. Kingsland Brick Co. 74 N. J. L. 492, 70 Atl. 732; Charter Gas & Engine Co. v. Barton, - Ala., 39 So. 985; Southwestern Portland Cement Co. v. O. D. Harvard Co. Tex. Civ. App., 155 S. W. 656.

"Where the contract provides for a return of the goods if unsatisfactory, the buyer cannot relieve himself or liability for the price unless he returns or offers to return them, and the offer to return must be unconditional." Walsh Mfg. Co. v. Plymouth Lumber Co. 159 N. C. 507, 75 S. E. 718; Berlin Mach. Works v. Ewart Lumber Co. 184 Ala. 272, 63 So. 567; Slawson v. Albany R. Co. 3 Thomp. & C.

768, 1 Hun, 438; Dewey v. Erie, 14 Pa. 211, 53 Am. Dec. 533; International Filter Co. v. Cox Bottling Co. 89 Kan. 645, 132 Pac. 180; Darling v. Manistee, 166 Mich. 35, 131 N. W. 450; Gray v. Consolidated Ice Mach. Co. 103 Ga. 115, 29 S. E. 604; Fred W. Wolf Co. v. Northwestern Dairy Co. 55 Wash. 665, 104 Pac. 1123; Fred W. Wolf Co. v. Monarch Refrigerating Co. 252 Ill. 491, 50 L.R.A. (N.S.) 808, 96 N. E. 1063.

Defendant must comply with the terms of the contract, and he must establish the fact that he has done so, as a condition precedent to his right of recovery. He has failed to do so in this case, and he has no remedy in court for damages or otherwise. Allen v. Tompkins, 136 N. C. 208, 48 S. E. 655.

Defendant's conditions of the contract must have been performed by him, or any remedy he might have had for a breach is lost. Fetzer v. Haralson, Tex. Civ. App. -, 147 S. W. 290.

"When a vendee of personal property has agreed that if there is a breach of warranty he will return the property, its return is the only condition on which he can rely on a broken warranty." Osborne v. Traylor, 8 Ky. L. Rep. 359; Chase Hackley Piano Co. v. Kennedy, 152 N. C. 197, 67 S. E. 488; Walsh Mfg. Co. v. Plymouth Lumber Co. 159 N. C. 507, 75 S. E. 718; W. F. Main Co. v. Griffin-Bynum Co. 141 N. C. 43, 53 S. E. 727; Minnesota Thresher Mfg. Co. v. Lincoln, 4 N. D. 424, 61 N. W. 145; Fahey v. Esterly Mach. Co. 3 N. D. 220, 44 Am. St. Rep. 554, 55 N. W. 580.

So, when the contract for the purchase of a threshing machine, under warranty, requires notice of defects to be given the company or vendor, and there has been failure on the part of the purchaser to claim any defects and failure to give notice within the time specified in the contract, or to return or offer to return the property, he has no standing in court to resist on any ground or breach of warranty, in an action for the purchase price. Gaar, S. & Co. v. Green, 6 N. D. 48, 68 N. W. 318; Aultman & T. Machinery Co. v. Wier, 67 Kan. 674, 74 Pac. 227; Seiberling v. Rodman, 14 Ind. App. 460, 43 N. E. 38; Minnesota Thresher Mfg. Co. v. Lincoln, 4 N. D. 410, 61 N. W. 145; McCormick Harvesting Mach. Co. v. Allison, 116 Ga. 445, 42 S. E. 778; Eichelroth v. Long, 156 Ill. App. 108; Hasenwinkle Grain Co. v. Dooley, 130 Ill. App. 75; Westbrook v. Reeves, 133 Iowa, 655, 111 N. W. 11; Gaar,.

S. & Co. v. Hodges, 28 Ky. L. Rep. 889, 90 S. W. 580; Nichols-Shepard Co. v. Rhoadman, 112 Mo. App. 299, 87 S. W. 62; Heagney v. J. I. Case Threshing Mach. Co. 4 Neb. (Unof.) 745, 96 N. W. 175, rehearing in 4 Neb. (Unof.) 753, 99 N. W. 260; Rowell v. Oleson, 32 Minn. 288, 20 N. W. 227; Hinchcliffe v. Barwick, 49 L. J. Exch. N. S. 495, L. R. 5 Exch. Div. 177, 42 L. T. N. S. 492, 28 Week. Rep. 940, 44 J. P. 615; Mesnard v. Aldridge, 3 Esp. 271; Hamilton v. Northey Mfg. Co. 31 Ont. Rep. 468; King v. Towsley, 64 Iowa, 75, 19 N. W. 859; Dunham v. Salmon, 130 Wis. 164, 109 N. W. 959; Sessions v. Hartsook, 23 Ark. 519; Kirk v. Seeley, 63 Mo. App. 262; J. I. Case Threshing Mach. Co. v. Hall, 32 Tex. Civ. App. 214, 73 S. W. 835; Walters v. Akers, 31 Ky. L. Rep. 259, 101 S. W. 1179; Wilson v. Nichols & S. Co. 139 Ky. 506, 97 S. W. 18; Haynes v. Plano Mfg. Co. 36 Tex. Civ. App. 567, 82 S. W. 532; Bomberger v. Griener, 18 Iowa, 477; Himes v. Kiehl, 154 Pa. 190, 25 Atl. 632; F. C. Austin Mfg. Co. v. Clendenning, 21 Ind. App. 459, 52 N. E. 708; Davis v. Gosser, 41 Kan. 414, 21 Pac. 240; Hoover v. Doetsch, 45 Ill. App. 631; Birch v. Kavanaugh Knitting Co. 34 App. Div. 614, 54 N. Y. Supp. 449, affirmed in 165 N. Y. 617, 59 N. E. 1119; Miller v. Nichols, 5 Neb. 478; James v. Bekkedahl, 10 N. D. 120, 86 N. W. 226; McCormick Harvesting Mach. Co. v. Arnold, 116 Ky. 508, 76 S. W. 323; Nichols & S. Co. v. Miller, 76 Neb. 809, 107 N. W. 1010; Williams v. Donaldson, 8 Iowa, 108; Hills v. Bannister, 8 Cow. 31.

An express warranty excludes any implied warranty. The contract here provides: "It is mutually agreed that said engine, fixtures, and equipment are purchased upon the following warranty only."

This brings this case squarely within the rule laid down by our court. Dowagiac Mfg. Co. v. Mahon, 13 N. D. 522, 101 N. W. 903; Blackmore v. Fairbanks, M. & Co. 79 Iowa, 282, 44 N. W. 548; Lynch v. Curfman, 65 Minn. 170, 68 N. W. 5; Wasatch Orchard Co. v. Morgan Canning Co. 32 Utah, 229, 12 L.R.A. (N.S.) 540, 89 Pac. 1009; Bucy v. Pitts Agri. Works, 89 Iowa, 464, 56 N. W. 541.

Defendant is limited to the express written agreement, and cannot rely upon any oral statements or assertions made to him, if any, by the experts or salesmen as to what plaintiff would do. Annis v. Burnham, 15 N. D. 577, 108 N. W. 549; Cughan v. Larson, 13 N. D. 373, 100 N. W. 1088; Foster v. Furlong, 8 N. D. 282, 78 N. W. 986;