
    O. A. KNUDTSON v. N. H. SCHJELDERUP.
    
    May 11, 1906.
    Nos. 14,679—(47).
    Appeal by plaintiff from an order of the district court for Yellow Medicine •county, Powers, J., denying a motion for a new trial, after a trial and verdict in favor of plaintiff for $400.
    Affirmed.
    
      H. P. Bengsion and John Lind & A. TJeland, for appellant.
    
      J. P. Smith, O. A. Fosnes, and Jno, W. Arotander, for respondent.
    
      
       Reported in 107 N. W. 1134.
    
   PER CURIAM.

We have endeavored in this ease to relieve plaintiff from an apparent difficulty, but are unable to see our way clear to do so. The action is one to re•cover the purchase price of an automobile, in which defendant pleaded the defense of a breach of warranty. The agreed purchase price' of the machine was $973. The defense was that by reason of its defects it was of no value whatever. Plaintiff had a verdict for $400. At the trial plaintiff offered to. •show that, subsequent to the commencement of the action, defendant sold the automobile for the sum of $800, which evidence was excluded by the trial •court.

This ruling is the only error assigned on this appeal. It is undoubtedly the rule that in actions of this kind, where the actual value of the property is in. issue, the price which it brought at a resale, made by the purchaser in the ordinary and usual course of business, is proper evidence for the consideration of the jury upon that question. A careful examination of the record in the case at bar, however, leads to the conclusion that the ruling of the court here complained of was not error, for the reason that the sale of the automobile attempted to be proven was not one conducted in the usual and ordinary course of business.- It amounted, at most, to an opinion by plaintiff:, expressed through his attorney, during the trial of the action, that the machine was worth $800. It was clearly not such a transaction as brings the sale within the rule of evidence referred to.

Order affirmed.

JAGGARD, J., dissents.  