On or about the 1st day of June, 1908, the plaintiff and defendant entered into a written contract, whereby the defendant was to become the agent of the plaintiff for the sale of its harvesting machinery at Hjuron, S. D., for the season of 1908. By the terms of this agreement, the defendant was to keep all goods supplied by the plaintiff “well stored out of the weather,” and that, at the time of making settlement under the contract, he would “settle for all machines and attachments used as samples, damaged by lack of proper shelter and care or taken from original packages, at the prices specified in Exhibit ‘B.’ ” The contract contained the further stipulation: “Said agent agrees not to deliver any machinery except upon a written order or blank form furnished by said company; also not to exchange or permit any machine to be returned or refund any payment, by reason of an alleged defect, until purchaser has fully complied with conditions of said order, and written notice has been sent to said agent and to Acme Harvesting Machine Company, Aberdeen, and reasonable time allowed to remedy any alleged defect. And said agent agrees to account to said company, in cash, at time of settlement, for all machines delivered, exchanged, returned, or on *362which payments may have been refunded in violation of the foregoing.”
Certain instructions ,which were made a part of the contract, contained the following: “You (meaning the defendant) are to give every purchaser one of our printed warranties with each machine you sell, which will be sufficient guarantee that the machine will work as represented; but, if you fail to give the purchaser our printed warranty, showing just what the machine is warranted to do, you thereby forfeit our warranty to you.”
This warranty was printed on the back of the contract, and was as follows: “Any machine of our make is guaranteed to do good and efficient work for which it is intended when properly operated. The purchaser shall have one day to give it a fair trial; should the implement then fail to fulfill this warranty, notice is to be given at once to the dealer from whom the machine was purchased, and after the dealer has used his best efforts, and should the machine still fail to fulfill the warranty, then both the purchaser and the dealer are to give immediate notice to Acme Harvesting Machine Company, at Peoria, Illinois, or their authorized general agent, stating wherein the machine fails to fulfill the warranty, and a reasonable length', of time -is'to be allowed for instructions to be given, or, if necessary, the sending of a‘person to put it in order or to remedy the defects, if any, the purchaser rendering any necessary assistance and furnishing suitable means, etc., when, if it cannot be made to fulfill the warranty, he shall return it to the place where -received, free of charge, and in as good condition as when received, and a new machine will be given in its place, or the notes and money will be refunded. Under no circumstances will the machine be allowed to be returned without an understanding and direct instructions from Acme Harvesting Machine Company. If notice of difficulty is hot received, as above stated, it will be conclusive evidence of satisfaction.”
At the time of making the contract, plaintiff shipped to defendant a machine, described as “one 8-foot Acme Queen Binder, with tongue truck.” This machine was set up by the defendant in his yard, and used by him as a sample machine during the season o-f 1908. In October of that year plaintiff and defendant had a settlement, and defendant, having this machine on hand, purchased it from plaintiff, in accordance with the terms of the *363agency contract, and gave plaintiff the note, payable November x, 1909, that is the subject of this action. The machine, after being set up in defendant’s yard in June, 1908, was allowed to stand there in the weather until about the 1st day of August, 1909, when he sold it. The purchaser immediately took it to a farm, about seven miles from Huron, where he attempted to harvest a field of grain with it. Defendant procured a field man of plaintiffs, whose business it was to set up and start plaintiff’s harvesting machines, to go with the .purchaser to set up and start the machine in question. This he attempted to do; but the machine would not work, and on the next day or the day following the purchaser, without giving defendant or plaintiff any notice that the machine was defective, other than a telephone message to defendant, to the effect that the machine would not work, and that he was on the road fetching it back, hauled it back to Huron, and left it standing on the right of way of the Northwestern Railway track. The evidence shows that the machine would cut and elevate the' grain and press the bundle, but that it would not tie the knot. The only defect in the machine, as it appears from the evidence, was that “the needle wouldn’t get far enough to the hotter to let it tie.” Whether this was the result of an inherent defect in the machine itself, or whether it was caused by the machine having stood out in the weather for so long a period of time, does not appear; but the purchaser of the machine testified that, when they took it into the field, and tried to make it work, they found they “had to take it pretty near all apart to get the rust off of it.”
No attempt was made by the defendant, or his vendee, to repair or replace the defective part of the binder; neither did either of them attempt to comply with the conditions of the warrant}, by giving notice to the plaintiff company, at Peoria, Ill., or to any of its authorized agents, stating wherein the machine failed to fulfill the warranty, or allow any time whatever for instructions to be given or for the sending out of a person to put the machine in order, or to remedy the defects. In fact defendant did not give the purchaser of the machine one of plaintiff’s .printed warranties at the time of the sale, nor did he require him to sign a written order blank furnished by the plaintiff, as he was expressly required to do by the terms of his contract. During the week that the machine was returned, defendant notified one of *364plaintiff’s salesmen, known as a blockman, that the machine had been returned, on the “ground that they could not make it work,” and on the 7th day of the following month defendant notified the company, 'by writing to its general agent at Aberdeen, S. D., as follows: “Huron, S. D., Sept. 7, 1909. Acme Ha-rvst Co., Aberdeen, S. D. Gents — On July 31st I sold to Ben and George Myers one 8-foo.t Acme binder, and let your man Wheeler go out and start the binder, and get settlement for same, which he did not do, and the next day the above parties returned the binder, claiming the same would not work. Now, I gave a note for the binder, payable, I think, October 1, 1909, for $120, which I will refuse to pay, as you people did not make the binder work as guaranteed by you, and the binder is here at your disposal, so please have this note cancelled and returned to me. Yours truly, F. M. Brown.”
The defendant, in his answer, admitted the execution of the note, then set up the warranty above quoted, and pleaded a breach thereof as a defense to the note. At the close of all the evidence, the court directed a verdict for the defendant, and judgment was entered accordingly. Plaintiff’s motion for a new trial was based upon alleged errors of law in the admission and exclusion of evidence by the trial court, and upon the insufficiency of the evidence to support the verdict. In the latter contention, we are of -the opinion that appellant is right. In the first place, the defendant did not purchase the machine in question under the express warranty set out on the back of the agency contract. This machine was one that was furnished by the plaintiff to the defendant as a sample to be used by him in making sales of other machines, and the undisputed evidence shows that it was under the clause of the contract, first above quoted, that the machine in question was purchased by defendant at the termination of the season’s contra-'t. There is no evidence to show, and it is not to be presumed, that the plaintiff furnished this machine to the defendant to be used by him as a sample, and to be left standing out in the' weather for one or any number of seasons, as the case might be, and then warrant it to do efficient work. It would, ait least, be incumbent upon the defendant to show that the defects -that were found in the machine, when they undertook to use it, existed when it was delivered to the defendant by the plaintiff.
*365There is nothing whatever in the record to support defendant’s theory that the special warranty and accompanying conditions above set out were intended to apply'to the machine in question. This is apparent from the conduct of the defendant himself, for, when he sold the machine, he did not require the purchaser to sign one-'of plaintiff’s written orders, or make any attempt to comply with the conditions of the warranty, or to plead or prove any matter that would give him the right of rescission.
' These views render it unnecessary to consider the other assignments of error. The judgment and order appealed from are reversed, and the case is remanded, with instructions to the trial court to enter judgment for the plaintiff for the amount sued for, and for costs.
McCOY, J., concurs in result.