Page:North Dakota Reports (vol. 3).pdf/207

on the ground that plaintiff had failed to establish performance of conditions precedent to recovery. We cannot assent to his interpretation of the contract. It was a contract of sale and purchase, with a collateral agreement constituting a warranty. The burden was on defendant to show a breach of the warranty; and even then he could not defeat the action without showing that he had complied with the conditions of the warranty to be performed on his part, and had rescinded the contract, or had sustained damages by reason of such breach of warranty equal to or exceeding plaintiff's claim. The parties intended that the title to the property should pass on delivery. The defendant states in the order signed by himself that he understood that the machine is sold, and that he is purchasing it subject to the following warranties, etc. The defendant did not agree to buy if certain conditions were fulfilled. He agreed to purchase a certain machine, and, when it had been delivered to and accepted by him, he was obliged thereafter to rely upon the warranty as any other purchaser of property. He must perform its conditions. He must either rescind or claim damages for breach. On the trial defendant asked leave to amend his answer by alleging, in substance, that, at the time he executed and delivered this order, one Parsons, general agent of the plaintiff, agreed with defendant that, if the machine did not do good work, defendant need not keep it, and that such agent informed defendant at the same time that defendant would not be bound by the terms of the written order. This request was denied. In this there was no error. Defendant could not vary by parol the terms of the written contract. This talk was contemporaneous with the execution of the writing, and it would violate all rules of evidence to allow defendant to contradict the solemn agreement of the parties in this manner. It was not error to refuse to permit defendant to plead what he would not be suffered to prove. The defendant himself stated on the stand that he could not tell when he had such a conversation with Parsons, whether before or after the execution of the contract, and that he could not say that this alleged talk was after