(concurring in part and dissenting in part). Tbe majority opinion has construed § 136 of tbe Constitution, and §§ 5238, 5240, and 5242, Comp. Laws 1913.
It, in effect, bolds that such constitutional provision and all of said statutes are invalid.
We think, however, tbe part of tbe opinion which discusses § 136 of tbe Constitution, and said statutes, is largely obiter dictum, for it is clear from tbe evidence in tbe case, that plaintiff was not doing business in tbe state of North Dakota. It was a foreign corporation; its principal place of business was White Bock, South Dakota. The transaction in question — that is, tbe selling of this threshing outfit to the defend*250ants — was the only one had in this state, and it was only partially had in this state, a large share of the transaction having taken place in South Dakota.
It therefore is clear from the record, the plaintiff was not doing business in North Dakota, for the doing of business does not exist as a fact, by the doing of a single, isolated transaction, and in this case even that is at least partially lacking.
The conclusion is irresistible that the plaintiff’s corporation was not transacting business in North Dakota, within the meaning of the statutes and the constitutional provision referred to, the plaintiff having carried on only a part of an isolated transaction within this state.
See, State use of Hart-Parr Co. v. Robb-Lawrence Co. 15 N. D. 55, 106 N. W. 406; Sucker State Drill Co. Wirtz, 17 N. D. 313, 18 L.R.A.(N.S.) 134, 115 N. W. 844.
As we view the matter, the opinion of the court, in this regard, is based upon an assumed state of facts. In other words, there axe no facts in the record to which the reasoning therein can apply. In other words, the plaintiff was not doing business in the state of North Dakota. Hence, the question under consideration, discussed by the opinion of the court, does not inhere in this case.
The evidence clearly shows that the plaintiff warranted the threshing rig as a whole. Several witnesses for the defendants, by clear and convincing evidence, established this fact. It is also manifest that such guaranty related not only to the condition of the threshing rig, to its state of preservation, excepting as to the roof of the separator, and certain wheels for the engine, but it also included its capacity to do the work which threshing rigs of similar size and capacity are intended to do. It also conclusively appears from the evidence, that the threshing rig was absolutely worthless as such; that, in fact, it would do no work. The engine had no power; the separator had not only a rotted roof, but the remainder of the woodwork was largely decayed, especially in the mortises.
The judgment should be reversed, and a new trial granted.
The real issue to be determined upon a new trial should be the difference in value between the threshing rig, as represented and warranted, and its actual value in its condition before any repairs were made by the defendants.
*251Tbe defendants should, also, be permitted to recover the-amount of money which they expended in repairing of said machine, with the •exception of the amount expended in repairing the roof of the separator. They should, also, be permitted to recover any damages sustained by them, which are the proximate result of plaintiff’s misrepresentations, upon which they relied, if it further be shown, that plaintiff knew, at the time it sold said threshing rig, and made said representations and warranties, that the defendants were depending upon the use of said threshing rig to thresh their crops, and they were damaged by not being able to use it for that purpose.