is not disclosed by the record, but on argument in this court, plaintiff's counsel asserted that the reason for the failure to file the same was that it had become lost.

In its findings of fact the trial court set out in haec verba the order signed by defendant, and in so doing apparently overlooked the testimony of the defendant relative to the alteration of the order as regards the length of the trial period, and the order set forth in the court's findings therefore is in accordance with the printed form, and provides merely for a three-day period of trial. Hence defendant's counsel argues that the order which the trial court found that defendant signed is materially different from the one which defendant was led to believe that he signed. In his brief defendant's counsel says: "The whole case hinges upon the question whether or not exhibit C-1 (the order) is or is not a valid, binding contract cutting off such rights (the rights to assert warranties). If it is, plaintiff must recover. If it is not the defendant must on this record recover." And, again: "Was there a fixed time specified in the real contract made between the plaintiff and defendant, beyond which time a retention of the engine would work a forfeiture of these rights on the part of the defendant? The paper says, 'Yes; three days.' The defendant signed that paper. Unless that paper limitation is vitiated by fraud, it must control. That brings us back to the first and second propositions specified in our argument, '1. By the fraud of Aller, exhibit C-1 was vitiated in toto.' '2. If that be not so, still it was vitiated in all matters relating to the time of trial, the right to rescind, the limitation of defendant's rights to rescission, and the attempt to force defendant to waive his common-law rights and reme dies.' Defendant, when Aller was reading exhibit C-1 to him, refused to deal or to sign the paper with the three-day trial limitation in it. Aller said he would change that and make it six days. He took a pen or pencil and pretended to make the change. Then he read the paper to defendant as having been changed in every place from three to six days. The paper was then signed by defendant. It was not changed at all, but contained the original, printed, three days' limitation. was submitted to the plaintiff company, and approved as printed." The only testimony on the question of alteration of the order was that of the defendant, who testified as follows on his direct examination: Q. In that talk (at the time the order was given) was there any

It

thing said about whether the printed order had been changed or would be change to make it six days?

A. It had.

Q. What was said and who said it, about that?

A. The order read three days.

Q. Who said that?

A. Aller did, he said the order I had three days, he wanted to know if I thought I was satisfied with that, and I wanted at least six days' trial; that is what I had on all other machines and he said it was already put in, and he wrote in the figure "6" and marked the three days, that is in the printing, crossed that out, and wrote in six days.

And on his cross-examination defendant testified:

Q. You said you read the order when you signed it?

A. Which order?

Q. The order for the new rig?

A. Yes, they read it to me.

Q. Aller read it to you?

A. He read the whole thing through to me.

Q. Then you signed it?

A. Yes.

Q. And you gave it to Aller?

A. I don't know who took it, I judge Aller or Peterson took it, it laid on the table and they were both sitting around there.

Q. And you say Aller took the order and with a pencil changed it from three days' trial to a six-day trial, is that right, before you signed it?

A. Yes, he changed it from three days to a trial of six days, but I won't say with a pencil.

Q. But you signed it?

A. Yes.

This testimony was not controverted by anyone, and in his motion. for judgment made at the close of all the testimony, plaintiff's counsel recognized the correctness of this testimony, and apparently conceded that the order was, as a matter of fact, changed as testified to by the defendant. In his motion defendant's counsel said "that it appears in

evidence that the machinery in controversy was purchased by defendant from the plaintiff pursuant to the terms of a written contract, providing, among other things, that if after six days' trial of the engine in such work as defendant might elect, such engine should develop 30 H. P. etc."

There is nothing to indicate that any fraud was practised upon the defendant. In fact his own testimony negatives, rather than affirms, the assertions of fraud and misrepresentations. A careful consideration of the evidence convinces us that Allen changed the contract so as to provide for a six, instead of a three, day trial period before it was signed by the defendant. Consequently the charge of fraud is unfounded.

It is also asserted that the order did not exclude implied warranties, and that, therefore, defendant might recover for breach of such implied warranties. The warranties set forth in the answer largely follow the express warranties in the contract, and defendant in his answer relied upon express, rather than implied, warranties. The evidence shows, and the trial court found, "that said plaintiff duly replaced all parts found defective within one year of the purchase of said engine on account of inferior material or workmanship, transportation

charges prepaid thereon according to the terms and conditions of said contract, and that the said plaintiff has complied in all respects with the conditions of said contract. That no warranties were given upon said engine or upon the sale or delivery thereof on the part of plaintiff or any of its agents or representatives except the regular written express warranty contained in the contract of purchase. That the said defendant, Stenger, is an intelligent man, is well versed in the English language, and is capable of writing and understanding the same, and that said defendant, Stenger, well knew the terms and conditions of the written contract for the purchase of said engine at the time of the execution and delivery thereof on his part." It will be noted that the contract of purchase expressly provides: "It is mutually agreed that said engine, fixtures, and equipment are purchased upon the following warranty only." Courts have no right to make contracts for the parties, but can only enforce the contracts which the parties themselves have made. There can be no serious doubt as to the intention of the parties with respect to warranties. The alleged implied

warranties now sought to be asserted are excluded by the express warranties on the same subject. Dowagiac Mfg. Co. v. Mahon, 13 N. D. 516, 101 N. W. 903; 35 Cyc. 390, 392; see also Hooven & A. Co. v. Wirtz, 15 N. D. 477, 107 N. W. 1078; Sorg v. Brost, 29 N. D. 124, 127, 150 N. W. 455; Comptograph Co. v. Citizens' Bank, 32 N. D. 59, 155 N. W. 680.

The judgment appealed from must be affirmed. It is so ordered.

ELLIOTT SUPPLY COMPANY, a Domestic Corporation, v. J. D. JOHNSON.

(159 N. W. 2.)

Personal property — warranty of quality — breach of -executed contract rescission - fraud - absence of.

1. A person cannot for breach of warranty of the quality of personal property rescind an executed sale in the absence of fraud or an agreement authorizing a rescission.

2. Evidence examined and held insufficient to warrant a submission to the jury of the defendant's counterclaim, there being insufficient proof of damages occasioned by the breach of warranty therein alleged. It was therefore error to deny plaintiff's motion for a directed verdict.

Damages - measure of — breach of warranty — quality of personal property. 3. The true measure of damages for breach of warranty of the quality of personal property is the excess, if any, of the value which the property would have had at the time to which the warranty referred, if it had been complied with, over its actual value at that time.

Opinion filed July 19, 1916.

'Appeal from District Court, Hettinger County, Crawford, J. From a judgment in defendant's favor, plaintiff appeals.

Reversed and a new trial ordered.

Harvey J. Miller, for appellant.

A warranty is an agreement by which a seller assures to a buyer

the existence of some fact affecting the transaction, whether past, present, or future. A statement that "the machine is guaranteed and it will beat anything in this part of the country" is a mere boast. Esterly Harvesting Mach. Co. v. Berg, 52 Neb. 147, 71 N. W. 952.

The breach of a warranty of the quality or personal property on a sale, entitles the buyer to rescind unless it has become an executed contract. Comp. Laws 1913, § 5994.

A voluntary acceptance of the benefits of a transaction is equivalent to a consent to all the obligations arising from it, so far as the facts are known or might be known to the person accepting. Comp. Laws 1913, § 5866; Schager v. Dinneen, 33 S. D. 116, 144 N. W. 719; Schmidt v. Jutting, 31 S. D. 69, 139 N. W. 769; 35 Cyc. 429.

The use of a warranted machine after knowledge of defects, without offer to return as provided by the contract of sale, was an acceptance. Kingman v. Watson, 97 Wis. 596, 73 N. W. 438.

There being no evidence to the contrary, it is presumed that the property is worth the contract price. Comp. Laws 1913, § 7158; C. Aultman & Co. v. Ginn, 1 N. D. 402, 48 N. W. 336; Houghton Implement Co. v. Doughty, 14 N. D. 331, 104 N. W. 516.

The true measure of damages in case of a breach of warranty is the difference in value of the property as represented, and its actual value at the time. Comp. Laws 1913, § 7158; Houghton Implement Co. v. Doughty, supra.

Where a return of the property is offered, and a demand for the notes given therefor is made, these are elements of a rescission. 35 Cyc. 434; Comp. Laws 1913, §§ 5994, 7158.

But where the evidence clearly shows that the contract has been executed, no rescission can be had. Comp. Laws 1913, § 5994; Simonson v. Jenson, 14 N. D. 417, 104 N. W. 513.

Where the vendee continues to use the property after defects are discovered, without complaint to vendor, a rescission cannot be had. Bates v. Fish Bros. Wagon Co. 169 N. Y. 587, 62 N. E. 1094; Huyett & S. Mfg. Co. v. Gray, 124 N. C. 322, 32 S. E. 718; Osborne v. Dwyer, 13 Ill. App. 377; 35 Cyc. 429.

Charles Simon, for respondent.

For the purpose of determining its effect, the allegations of a plead