
    McCREADY, Respondent, v. VAKINER et al, Appellants.
    (168 N. W. 579).
    (File No. 4287.
    Opinion filed July 22, 1918.
    Rehearing denied September 6, 1918.)
    1’. Sales — Purchase of Stallion — Guarantee of Services — Breach of Warranty — Rescission—Evidence of Value, Necessity — Instruction.
    In a suit by purchaser of a stallion, defendant’s vendors hav- - ing guaranteed that, providing certain rules were conformed to in the care and handling of the stallion, it would, for two years possess certain ability as a foal getter, the complaint alleging breach of warranty, valuelessness of the stallion and demanding recovery of purchase price and value of keep of the stallion, and that before expiration of said period, plaintiff offered to return stallion, but defendants refused, held, the proof was insufficient to sustain verdict on theory of breach of warranty, there being none that the stallion was of no value; trial court having instructed'' that plaintiff, if entitled to recover, was entitled td full purchase price of stallion, no reference to a rescission being made; thereby assuming, without proof thereof, the warranty was broken and the stallion was valueless; and that,. if it considered the action one for rescission, it asshmed the evidence ©roved rescission.
    2. Same — Purchaser’s Suit on Warranty of Stallion’s Services-^ ■ Rescission — Warranty, Whether a- Condition — Statute—Assumption as to Issue re Rescission.
    In a suit by vendor against vendees of a stallion, .for damages for breach of warranty that, providing certain rules were conformed to in care of handling of the stallion, it would for two years possess certain ability as a foal getter; the complaint alleging an offer to return the stallion and refusal thereof by defendants; there being neither allegation nor proof of any fact upon which plaintiff could rescind unless it were held that the warranty was “intended' by the parties to operate as a condition” under 'Civ.’ Code, Sec. 1340, the Supreme Court will on appeal assume '(but not decide) that the warranty or guarantee was intended -by the parties to operate as a condition; since defendants-appellants have raised no question but that, had there been breach of warranty and respondent had acted in time, he could have rescinded the contract.
    3. Same — Purchase Price of Stallion, ' Damages for Keep — Rescission — Ratification—Keeping Stallion • After Offer to Rescind, Effect — Directed Verdict, Right To.
    In a suit for damages by vendor under purchase of stallion and for his keep, based upon a rescission of a contract for failure of the animal .to make good for two years a warranty as to his services; plaintiff, after keeping the stallion a year and a half before attempting rescission, having thereafter treated it as his own for breeding purposes, heild, defendants’ vendor was entitled to directed verdict, because if right to rescind ever existed, evidence showed it was waived through delay in rescinding, after knowledge of facts relied upon as entitling to rescind, and because also after such attempt, vendor, by using the animal, ratified the contract.
    4. Appeals — Review—Certificate to Settled Record, re Evidence— Sufficiency of Evidence, Whether Reviewable — Statute.
    Where a certificate of trial judge to settled record recited that it contained “the evidence received and rejected so far as the same is necessary for the full determination of the errors specified,” held, su'ch certificate was sufficient under Laws 1913, 'Ch. 178, Sec. 3 Subd. 1, providing that a party specifying error as to insufficiency of evidence, shall see that all material evidence ' is incorporated into the settled record, and that clerk must procure from trial judge a certificate that such record “contains all the material evidence received upon the trial.”
    Gates, J., concurring specially.
    
      Appeal .from ¡Circuit Court, Gregory County. Hon.'William Williamson, Judge.
    Action by W. B. MfcCready, against August Vakiner and otiléis, to recover 'damages under a contract for purchase of a sitallion. From a judgment in faVor of plaintiff, and from an order denying a new trial, defendants appeal.
    -Reversed
    
      N. D. Burch, for Appellants.
    
      W. J. Hoofer, for Respondents-.
   WHITING, P. J.

Plaintiff purchased a stallion, fr-o-m defendants. Defendants guaranteed that, provided certain- rules were conformed to in the dare and handling of the stallion, such stallion would, for a period of two years, posses® certain ability a® a foal-getter. After the expiration of the two year® plaintiff brought this action. The complaint 'alleged the breach of the warranty, that the stallion wte1 of no value whatsoever, 'and 'demanded recovery of the purchase price together with the alleged value of the c’ost of keeping the stall iota during the twO-yeiar perio-d. In' -answer thereto the -defendants admitted the warranty,,but alleged a failure on the part of -plaintiff to -comply with the conditions upon which such warranty was- based. At the opening of the trial the -complaint was amended by'the insertion of the further allegation that shortly before the expiration of the two-year period' plaintiff offered to return the stallion to defenidlants, and that defendants refused sufch offer. The cause was tried to a jury, -which rendered a verdict in favor of the plaintiff for an amount considerably in excess- of the purchase price of -the stallion. From tire judgment entered upon such verdict and fnolms an-order denying a new trial this- appeal was taken.

We are somewhat at a loss to determine upon what theory the toial court tried this1 cause. The proof was- insufficient to' sustain any verdict on the theory of an action for damages for breach of the .warranty ‘because there was- absolutely no evidence to show that the stallion was1 of nio- Value, and the court in it® instruot-io-ns assumed that, if plaintiff was entitled to recover at all, he was entitled to recover the full purchase price of ¡the stallion. On the other hand, there is nothing 'in- such instructions' that refers to the matter idf rescission. It would therefore appear that the trial court, if it -considered this an action, on the warranty, assumed, without proof thereof, that, if the warranty was broken, the stallion was1 of no value, or else, if it -considered this an action based on rescission,- assumed, as a .matter of law, that the evidence proved a rescission. Respondent in his brief claims, that he whs entótléd to recover because of ,a rescission of the Contract. Unless hie is correct in this claim', the trial court must be reversed.

There was neither allegation nor proof of' any fact upon which respondent could base a claim of right to rescind, unless it should be held that the guaranty Or warranty contained -in the contract of: sale was “,intended: by the parties to operate as a condition,” thus bringing it under the provisions of section .1349, C. C. We will, 'for the purposes of this appeal, assume, but not decide, that t'he warranty or guaranty was' intended by the parties 'to operate as a condition. We feel at liberty to sfc> assume in view of the fact that .appellants have raised no question, but that, if' there had been a breach of the Warranty,' and respondent had acted in time, he would have had the right to rescind th:e contract.

Viewing this action as one seeking a recovery of the purchase price of the stallion and a recovery of damages ¡for bis keep, such recoveries being based upion a rescission of the 'contract of sale, was there reversible error committed by the trial court ? That there was such error, we think, admits of no question. It is undisputed that respondent w!as fully advised, within a period of seven or -eight months after entering into the contract, that the stallion failed ito fulfill the warranty. After that respondent kept the stallion about ¡a year and a half 'before he attempted any rescission. Even after the offer to rescind respondent treated the stallion as his own, using him- for breeding purposes. Appellants 'asked for a directed verdict upon the ground that the evidence showed that the right to rescind, if it ever existed, .had. been waived by respondent through his ¡delay in attempting to rescind after full knowledge lolf the facts relied upon as entitling him to rescind, and upon -the ground) that, after the attempted rescission and' offer to return the stallion, respondent used him as his owh, thereby ratifying the contract. If -the trial: court considered this an 'action based upon a claimed rescission, it was bound to sustain su'ch motion for directed verdict. Appellants also raised the question of the sufficiency of tbe'evidlence by 'spedifying'its insufficiency -to support the verdict. We deem it unnecessary to consider'other errors assigned by appellants.

Responictenit contends' that the certificate of the --trial judge attached- td the settled! récord- whs -not sufficient to comply' with--subsection 1, § 3, c. 178, Laws 1913, land 'that/'therefore this court cannot- rightfully consider any -question- of insufficiency of evidence; While such certificate does nio-t follow! tine wording of the statute, it does -appea-r therefrom that the settled record contained “the evidence received and rejected so -far as the.same.is necessary for the full determination! of the errors specified.” We deem such statement in -the certificate 'a sufficient compliance with the statute.

The judgment .and order appealed ftfomi are reversed.

GATES, J.

(concurring). I concur in the result, hut 'believe respondent had, undler the contract, the full period of two years within which to rescind.  