(dissenting). The following is a part of the instructions:
“You are further instructed that, if you find from the evidence that a contract of sale for said tractor was made upon approval or on trial or on satisfaction, and that the purchase price agreed on was $1,025, and further find that said tractor was delivered to the defendant by the plaintiff, and that the defendant failed to return said tractor to the plaintiff, or to tender a return thereof within the time agreed upon, or within a reasonable time, if no time was agreed upon, then you should find for plaintiff on the first cause of action; and you are instructed that the question of what is a reasonable time is a question of fact for you to determine under all the facts and circumstances connected with this particular case.”
“If from the evidence in this case you find that there was a contract of sale or a sale entered into between the plaintiff and defendant of the tractor and plows as claimed by plaintiff, and further find that said contract of sale was made upon approval or on trial or satisfaction, and further find that the plaintiff warranted said tractor and plows to do certain work, and that they failed after a fair trial to do such work, and did not fulfill the warranty, then the defendant would have the right to rescind the contract of sale or the sale; and if the tractor and plows had already been received by him to return them or offer to return them *506to the seller and recover any portion or part of the purchase price, if he had paid the same.”
“You are further instructed that, where an agreement is made whereby a party is to take goods on trial, and is to keep said goods and pay for the same only upon condition that they work satisfactorily to the buyer, the buyer cannot arbitrarily say that he is not satisfied with the goods, but there must be some actual breach of warranty in the property upon which the buyer bases his refusal to accept the goods, or his claim that the same are not satisfactory to him. In other words the buyer must act honestly in his refusal to accept and keep the goods.”
In our opinion such instructions were erroneous and the giving of them was prejudicial reversible error. In this case there was no contract of warranty as that term is usually understood. If defendant’s version of the contract be true — that the tractor and machinery purchased were to work to his satisfaction and to that of his hired man — then the contract was much broader than that of warranty. It was an entirely different contract and the law of warranty did not apply to it, hence, it was error in the court to have given the instructions on warranty, where the court gave the jury to understand it was the defendant’s duty to return the tractor and plows or to offer to return them, after first having rescinded the contract. If the contract were as defendant claims, he was not required to return or offer to return or to rescind the contract if he were dissatisfied; all that was necessary for him to do was to inform defendant that he was not satisfied or that they were not satisfied.
There is sufficient evidence in the record to show that he did so inform plaintiff and also to show that the machinery did not do its work properly so that assuming the truth of defendant’s testimony in this respect, there w?as a basis for his dissatisfaction. Under the instructions the defendant not having returned or offered to return the machinery, it is not improbable that this under the foregoing instructions was the turning point in the case and that on account of this the jury ‘found in favor of plaintiff, whereas it is plain defendant was under no obligation to return or offer to return the property. The only instruction in this branch of the case proper to be given was that if the jury believed from the evidence that defendant was honestly dissatisfied with the tractor and plows, then the jury should find in his favor. The instructions as given was highly prejudicial and did not state the law applicable. Garland v. Keeler 15 N.D. 549, 108 N.W. 484; McCormick Harvesting Machine Co. *507v. Chesrown 33 Minn. 32, 21 N.W. 846. In the latter case in the syllabus it is stated “If, upon such reasonable trial it does not work satisfactorily, it is not necessary for him to return it, (in the absence of an express agreement to that effect), but it is sufficient if within a reasonable time he notify the person furnishing it in substance that it does not work satisfactorily, and that he declines to accept it.”
It is wholly immaterial whether plaintiff was making much or little profit in the transaction. The important question is: what was the contract? And in the circumstances of this case that was the question for the jury, under proper instructions by the court, which in this case the court wholly failed to give.