A reargument was ordered on the question as to whether or not this court should order a dismissal of the action or a new trial and, in the event of ordering a new trial, as to whether the plaintiff should be permitted to amend the complaint so as to state a cause of action to recover damages for breach of warranty. Such reargument has been had. Upon the reargument the appellant stressed those provisions of the contract wherein it was stipulated that *Page 505 in case the purchaser should claim the machinery to be defective and not to fulfill the warranty the seller should be notified and be given a reasonable time in which to put it in condition to comply with the contract, or be allowed at its option to substitute a machine or part, and upon failure of the seller in this respect the purchaser should discontinue the use of the machine, or substituted machine, and place the same at the disposal of the seller and the sale should be considered rescinded, the seller being obligated to return the money, notes and other security received and that this should "constitute the exclusive remedy of each party and a full settlement and release of all claims of every nature by one against the other pertaining to this transaction." Such a provision of a machinery contract of this character has been held binding and effective. Palaniuk v. Allis-Chalmers Mfg. Co. 57 N.D. 199, 220 N.W. 638; Holden v. Advance-Rumely Thresher Co. post, 584, 239 N.W. 479. The rescission here fails by reason of the acts of the purchaser as shown in the original opinion.
We are of the opinion that, under the facts in this case, it clearly appears that the appellant has no cause of action and that the order of this court must be for a reversal of the judgment and a dismissal of the action.
CHRISTIANSON, Ch. J., and NUESSLE, BURR and BURKE, JJ., concur.