
    SCHAGER, Appellant, v. DINNEEN, Respondent.
    (144 N. W. 719.)
    1. Evidence — Conclusiveness on Party Introducing it — Estoppel by Pleading.
    In an action on a note given in payment for drills, defendant, who set up a -breach of warranty, and introduced in evidence a copy of the same, cannot on appeal contend that the warranty was not in accordance with the instrument introduced.
    2. Sales — Action for Price — Failure of Consideration — Sufficiency of Evidence — Defects, and Value.
    In an action on a note, where defendant plead breach of warranty and total failure of consideration, in that the machines for which the note was given were, unfit for purpose intended, a general verdict for defendant cannot -he- sustained, it nowhere appearing that one of the machines was defective, or that notice to plaintiff of its defects was -given, and there was no evidence of its value.
    3. Sales — "Warranties—Notice of Breach.
    Where the warranty of an implement manufacturer required immediate notice of failure of any machine to perform the work for which it was intended, notice given by a- dealer some six months after defects developed in using the machines, is to© late to entitle him to take .advantage of the warranty.
    ' 4.- Evidence — Admissibility—Best Evidence — Oral Evidence of Better.
    In an action on a note for price of farm machines, ¡defendant, who set uip breach of warranty, cannot, over ¡plaintiff’s objections on grounds of lack of foundation, and of failure to demand its production, testify as to contents of a letter alleged to have ¡been written by him to plaintiff giving timely notice • of breach of warranty.
    5. Appeal — Abstracts—Sufficiency—Additional Abstract — Presumption.
    Appellant's abstract is .presumed to be correct; and if incomplete, it was respondent’s duty to have made it complete by an additional ¡abstract, or statement of case, in default of which, said presumption exists.
    (Opinion filed December 30, 1913.)
    Appeal from Circuit Court, Beadle County. Hon. Arva E. Tayror, Judge.
    Action by E; L. Sc-hager against S. D. Dinneen, -to recover upon a note. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.
    Reversed and remanded.
    
      Gardner & Churchill, and C. A. Christofherson, for Appellant. Where the contract .provides that in case the machine fails to fulfill the warranty, then 'both ¡the .purchaser ¡and the ¡dealer shall give immediate notice to the company, compliance with-these terms of contract or warranty is indispensible and is a condition precedent to die existence of any- cause of action- under the warranty. Louis v. Hubbard, i Lea (Teim.) 436, 27 Am. Rep. 775; Be-ckett v. Gridl-ey, et. al., 67 Minn.. 37, 69, -N. W. 622.
    Where the warranty requires notice to -be given at once, -a compliance with these terms) is indispensable, to -permit a ¡counterclaim to- recover the purchase price -of the machine. Oscar Smith & Sons Co. v. Janesville Batting -Mills Go.,- (W'is.) 137 N. W: 966. Gaar, Scott & Co. v. Halverson, et al., 1-28, N. W.'108.
    The respondent testified that he - wrote the Fetzer & -Co. about the time ¡the drills were ¡brought back, but there is no evidence that the letter presumed to have been written, was ¡ever mailed to Fetzer & Co. at Middletown, Ohio. There -i-s no' evidence whatever that th-e respondent, S. D. Dinneen, gave notice of defects in any ¡other manner.
    
      The court erred in overruling (plaintiffs objection to the questions propounded to the .defendant under -direct examination, for the reason stated in said objection: ITan-son v. Lindstrom, 15 N. D., 351, 108 N. W. 798.
    The evidence fails to show a total failure of consideration, for the reason that there is no evidence which tends in any way to prove that the -drill sold to Frank Shannahan was not in accordance with -the warranty.
    IN REPLY.
    Respondent is attempting to rest his case upon a different theory in this court from that in the trial court, and to- rely upon an im-p-lied warranty. McTherson v. Julius, 17 S. D. 98, at page 122; Parris-h v. Ma'hany, 12 S. D-. 278; Loom-is v. LeOo-cq, 12 SD. 324; Noyes v. Brace, 9 S. D. 603. Respondent proved a special written warranty. This precludes all .written or' implied warranties. 30 Am. & Eng. Enc. of Law, p. 135; La Crosse Plow Co. v. Helgeson-, (Wis.) 106 N. W. 1094; Sherwood v. Hulett (Wis.) 114 N. W. mi; Monroe v. Hi-ckox, Mull and Hill Co.,, (M-ich.) 107 N. W. 719; Sullivan- Machinery Co>. v. Breeden, (had.) 82 N. E. 107.
    Under th-e contract between the parties, the -written- warranty, proved by -the defendant and respondent -himself was- made the only warranty existing -between the parties.
    Respondent has filed- no additional abstract, ihence appellant’s-abstract will be -taken as a true statement of the evidence in the case, and this appeal determined thereon. Valley City Land & Irr. Co. vs. Scbonc, 2 S. D. 344. Billingh-urst v. Spink County,
    3 S. D. 87; Noyes v. Lane, 2 S. D. 55; State v. Harbour, (S. D.) 129 N. W. 565.
    
      A. W. Wilmarth, for Respondent.
    There being evidence -that these drills -w-ere of no- value it was unnecessary for th-e -defendant to give Eetz-er and Co-, ainnoti-ce. However, the defendant -did give Fetzer and Co. notice-•that these -drills -wo-u-l-d not work and .'that he couldn’t keep them out and tibe de-fendian-t further notified Eetzer -and -Co. by letter under date of Sept. 7, 1909.
    Th-e jury found for the -defendant that these machines were of no value. There being evidence toi sustain the finding of the jury and no com-plainit of the charge of the court in submitting the case to the jury, that verdict should- be sustained. There was no evidence that these drills were of no value.
    The objection to question asked of defendant, states there was-no proper showing. Th-is admits .some showing. W-ha't that showing was, is not 'before the court. The presumption of law is that in the absence of a showing to the contrary, that the ruling w-a-s correct. There is no evidence to show that the letter referred to in said interrogatory was ever mailed to Fetzer and Oo., or that Fetzer and Oo‘. ever had possession of -it.
   GATES, J.

On May 19, 1908, respondent, a -dealer in- farm implements at Huron, S. D., gave Wrn. Fetzer & Go. a non-negotiable promissory note for $120 in payment for four drills pursuant -to a contract or receipt, a copy of which is as follows: “Huron, S. D., May 19th, 1908. Received of S. D. Dinoeen of Huron, So. Dakota, 'his note, for one hundred and twenty dollars ($120.00) which becomes due and payable Nov. 1st, .1908 (9), with 7 per cent interest from maturity. Said note if so- accepted by Fetzer & Co. of Middletown, Ohio-, shall constitute payment in full of four (4) Plymouth drills made 'by Fetzer & C'o-., said drills being complete and! with the extra boot's: and scrapers belonging thereto, said drills to be placed f. O. b. oars at Gettysburg, So. Dakota, in good shape. If note is not ,accepted as above stated then said note to be returned to S. D. Dinoeen at Huron, S. D., by Fetzer & Co. Said drills to be loaded and shipped to' S. D. Dinneen at Huron, S. D., upon his request any time prior to Oct. 1st., 1908. Fetzer.& Co., by H. Q. Turner. S. D. Dinneen.” Default having been made in the payment of said note, this action was instituted by appellant, the holder thereof. To the complaint the respondent interposed a general denial. Said answer also contained the following:

“(4) For a further defense, and by way of counterclaim, the defendant alleges that the note which he gave to William- Fetzer & Co. was given for Fdtzer disc drills, under a special -warranty that the drills' were of good material, well m-ade, and would deposit grain in an even and equal proportion over the land drilled.
“(5) That the drills were not Well made; that they were constructed of poor material; that they would1 clog and break, and would ndt sow grain in an even and equal proportion and would', not sow flax at all; were of inferior workmanship and were unfit for the purposes for ■which they were constru-cted1 and sol'd -to 'defendant.”

Upon the trial respondent was allowed to amend the answer by adding to paragraph 5 “tfaalt they were of no value whatever.” Upon the trial, presumably to prove the special warranty alleged in paragraph 4 of -the answer, respondent offered in -evidence a contract between Fetzer & Co., party of the first paid, and S. D. Dinneen, party of the- second part, existing at the time the -drills were purchased, the material pant o-f which is as follows :

“(10) Second party hereby accepts the special instruction contained herein as part of this- agreement and the printed warranty on this -contract for goods sold under this -contract as the only one authorized by said first party and any variation therefrom makes s-ec-ond party liable for all loss, damage or expense occasioned thereby. * * *
“Warranty. All good's sold- ion this contract are purchased and sold subject to the following warranty and agreement, which is made a part of the contract: Any machine of our make is guaranteed ‘to do- good and -efficient work for which it i-s intended- when properly operated.’ The purchaser shal-l have one day to- give it a fair trial,; should the implement then fail to fulfill this warranty, notice is to be given- at on-ce to- ¡the -dealer from w'h-om the machine was purchased and after the dealer has used hi-s best efforts, and should the machine sti-ll fail to fulfill the warranty, then both the purchaser and dealer are to give immediate notice to Fetzer & Company, at Middleto-wn, Butler county, Ohio-, stating wherein the machine fails’ -to- fulfill the warranty. * * * Under no -circumstances will the goods- be allowed to -be returned- without an understanding and direct in-struction-s from Fetzer & Company. If notice of difficulty is not received as above stated, it will be conclusive evidence -o-f satisfaction.”

One of -the 'drills was broken- and defective when it wa-s delivered to respondent. The remaining -three -drills respondent sold in the spring of 1909 to farmers by the names of Evans, Welch, and Shanahan. The jury returned a verdict in favor of the defendant.. Erom the judgment based thereon, and from the order denying -a new -trial, the plaintiff appealed-.

If it be a fact that -these drills were sold to respondent by Fetzer & Co-., under the terms of the above warranty, and respondent may not for .the purposes of this appeal say that they were not, the evidence w-a-s insufficient to sustain the verdict because no evidence was offered that showed that the drill 'sold to Shanahan was defective, and there is no evidence from which the value of that drill could be ascertained. In other words the allegations of breach of warranty in the counterclaim by reason of the total failure of consideration were not sustained by the evidence because it was not proven that ¡the Shanahan drill was even defective. Testimony was offered with reference to defects in the particular drills sold to Welch, and Evans, but none wa's offered in relation to the drill sold Shanahan, except die very general language used in the letter hereinafter recited that “the drills would not work.” Nor was there any evidence tending- to show any notice to -respondent that the Shanahan drill was defective. As to’ the drill sold to Welch, it expressly appears that respondent did not attempt to make it work, after being notified of its -defects as -he was obligated to -do if the machines were purchased by him from Eetzer & Co. under that warranty. As to the drill so-l-d to Evans, it appears that respondent did try to make it w-o-rk after being notified -of its defects, and as to -the fourth drill it satisfactorily appears that respondent promptly gave notice to Eetzer and Co. of its broken condition.

But the important question in the -case under the terms of the warranty is: Did respondent give Eetzer & Co. timely notice that the three drills sold by him in the spring of 1909 to the three customers were defective? The -defects in the drills sold to Welch and Evans were made known to- him within one day after use. Nearly six months afterward, and on O-ct. 7, 1909, respondent wrote Fetzer & Co. as follows: “Huron, South Dakota, 10-7, 1909. Fetzer and Co., Springfield, Ill.—Gentlemen: In 1908 I purchased from your Mr. Taylor (4) Eetzer Drills' you had at Gettysburg, S. D. Gave him my note due Nov. 1st, 1909 for $120.00. I write you this to say that I sold the drills and took settlement from my customers at time I -put them o-ut. But they were unable to -make them do the work nor could my men make them give any kind of satisfaction and I turned back to- the purchasers their notes and money. The drills are here subject to yo-ur order Please return me my note. Yc-u also have some seeders here fc-r 'two years. I wish you would order them away. No room to keep them covered from now on. Yours ¡truly, S. D. Dinneen.” Under 'the terms of the warranty, such notice was not timely.

Upon triad, respondent being a witness and the above letter having just been offered in evidence the following appears to have -taken- place: “Q. Now state what you said to them, as near as you can ¡remember, in the letter you wrote right away after -the drills were brought 'back.

Mr. Churchill: That is -objected to- for the reason it is not the best evidence and no proper showing made as to- the present whereabouts of such letter and no timely -demand -made u-po-n the plaintiff to produce all correspondence, and the plaintiff had no opportunity to- produce such correspondence, if any 'exists. The Co-urt: He may answer. (To which ruling (the plaintiff then and ■there duly excepted and exception was allowed.) Q. State the contents. A. I wrote them I couldn’t keep them -out. Couldn’t make the -drill's work, or words to that effect. I don’t remember the exact wording of the letter.” Under respondent’s ¡theory that the goods -were purchased from Fetzer & Go. under the above warranty, it was inCumlb-enit upon respondent to s-ho-w that he had given Fetzer & Co. notice of the defects ¡promptly after discovery. It was certainly prejudicial error to allow the witness to- prove the contents of that letter, over appellant’s objection, without any fo-undatio-n having been laid therefor.

It is contended by respondent that the objection “no -proper showing” presupposes some showing, and that, as the record does not disclose such showing, the -ruling of the court must be deemed to be correct. This argument -is ¡specious. I-f appellant’s abstract of the record is incomplete, it was -the duty of the respondent to have made it complete by an additional abstract or' statement of the Gase; not ¡having clone so, we must presume the record to be correct.

Inasmuch as the remaining errors complained- of may not arise on a new trial, we do not deem it necessary to- consider the-m at this time.

For the reasons herein -given, the judgment and order denying a new trial are reversed.  