In 2 Ency. Pl. & Pr. 428, the law applicable to the case at bar is thus stated: "The general presumption will be made in favor of a decision appealed from, where the record does not affirmatively show error, that every proceeding below essential to its legality was validly taken, and that every fact essential to its regularity was legally shown. And where, on any contingency supposable in the state of the record, the decision below might have been valid, such contingency will be so presumed." And the learned author cites a long array of authorities from nearly all of the states of the Union in support of the text.

The learned author, in a note (page 430), restates the rule as follows: "Where an appeal to this court is to be determined on the judgment roll alone, all intendments will be in support of the judgment, and all proceedings necessary to its validity will be presumed to have been regularly taken. If the error relied on to destroy such presumptions consists in matters dehors the record, such matters must be brought to this court by a bill of exceptions, or other appropriate method. If any matters could have been presented to the court below which would have authorized the entry of this judgment, it will be presumed that such matters were presented, and that the judgment was entered in accordance therewith"-citing Caruthers v. Hensley, 90 Col. 559. 27 Pac. 411.

The law as above stated has been approved by this court, and by the former territorial court. Searls v. Knapp, 5 S. D. 325, 58 N. W. 807; Gress v. Evans, 1 Dak. 387, 46 N. W. 1132; Myers v. Mitchell, I S. D. 249, 46 N. W. 245; Merrill v. Luce, 6 S. D. 354, 61 N. W. 43. See, also, Parkinson v. Thompson, 164 Ind. 609, 73 N. E. 109.

The judgment of the circuit court is affirmed.

J. I. CASE THRESHING MACH. CO. v. GIDLEY.

An order allowing an amendment of defendant's answer during trial was not prejudicial to plaintiff, where the trial court offered plaintiff a continuance, which plaintiff declined.

In the absence of a request for a more specfic instruction, a party cannot on appeal complain that an instruction erroneously failed to define a certain term.

Error in refusing to direct a verdict for plaintiff at the close defendant's evidence is waived by plaintiff's failure to renew the motion after the introduction of further evidence on the part of defendant under leave of court.

A breach of warranty in the sale of a machine is not failure of consideration.

An instruction to which no exception was taken will for the purpose of the decision on appeal be regarded as the law of the case.

In an action for the purchase price of a machine, the answer was insufficient as a counterclaim for damages for breach of warranty, where it did not allege what the value of the machine would have been if as warranted.

An agreement in a contract for the sale of a machine with warranty that, if after a trial the machine shall fail to fulfill the warranty, notice shall be given the seller, stating in what parts and wherein it fails to fulfill the warranty, and reasonable time shall be given the seller to send a competent person to remedy the difficulty, and the failure to make a trial or give notice shall be conclusive evidence of due filfillment of the warranty, is a binding contract upon the parties who execute it.

A contract for the sale of a machine with warranty providing that, if after 10 days' trial by the purchaser the machine warranted shall fail to fulfill the warranty, written notice shall be given, is not a mandatory requirement that the purchaser continue his attempts to use the machine for 10 days, but is a mere limitation upon his time for trial.

Under a contract for the sale of a machine with warranty providing that, if after 10 days' trial the machine shall fail to fulfill the warranty, written notice shall be given to the seller, stating in what parts and wherein it fails to fulfill the warranty, a notice that the machine was unsatisfactory, and that the purchaser could not make it work and wanted a man to make it work, was insufficient. If the seller of a machine sold with a contract of warranty, providing that, if it be defective, notice should be given specifying the defects, acts upon a notice which merely states that the machine is defective, and undertakes to remedy the defects, he waives the objection that the notice was not in the proper form, but the mere fact that employes of the seller visited the place where the machine was being tried, there being nothing to show that they came by the seller's direction or authority, is not sufficient to show waiver of notice.

Testimony that parties not before the court declared they were agents of plaintiff is not admissible.

(Opinion filed, October 3, 1911.)

Appeal from Circuit Court, Potter County. Hon. LYMAN T. BOUCHER, Judge.

Action by the J. I. Case Threshing Machine Company against Nelson Gidley. From the judgment for defendant, plaintiff appeals. Reversed and remanded.

Case & Shurtleff, for appellant. Robert B Fisk, for respondent.

SMITH, P. J. Action upon three promissory notes given by defendant to plaintiff for a corn shredder and husker of plaintiff'manufacture. The transaction was based upon a written order dated November 24, 1905. Under the terms of the order, the machine was warranted to be "made of good material and with good care to do as good work under the same conditions as any made in the United States of equal size and rate of capacity, when operated by competent persons and with sufficient power." fendant received the machinery on the 28th of November, 1905, operated it upon seven different days, and returned it on the 20th of December, 1905, leaving it in front of the machine house of one E. Mesick, plaintiff's agent at Gettysburg, where it had been unloaded from the cars and received. Defendant alleges that the machine failed to do good work, in that the ears of corn passed between the snapping rolls, and became crushed and ground up and thrown into the shredded pile of cornstalks. The complaint was in the usual form upon promissory notes, pleading a chatte! mortgage, default in payment, and demand for foreclosure. The answer admits the execution of the notes and mortgage and nonpayment. In his original answer defendant pleaded that the husker and shredder was purchased by defendant upon an express warranty that it was a machine fully capable of doing the work for which it was built and intended, to-wit, a husker and shredder of corn; that it utterly failed to do the work for which it was designed and which it was warranted to do, and was and is utterly worthless and of no value whatever; that, upon the failure of said machine to do the work warranted, it was delivered back to plaintiff, who accepted the same in full settlement of all claims. against defendant under or by reason of the notes and mortgage mentioned in the complaint; and that defendant never received any value or consideration whatever for the notes and mortgage.

Toward the close of the trial defendant's counsel asked leave to amend the answer by setting up in full the order under which the machinery was purchased, which was granted and the answer subsequently amended. The entire order thereby became a part of the answer, and all its terms and conditions are before the court and undisputed. In the amended answer defendant again pleads that he never received any value or consideration for the notes and mortgage, alleges that upon failure of the machine to do the work it was designed and warranted to do, and after defendant had given it a fair trial, during which the machine was furnished with sufficient power and competent persons to operate it, and the printed rules and directions of the plaintiff were diligently followed by the defendant, said machine utterly failed to do the work for which it was designed, and defendant, promptly at the expiration of ten days' trial, returned and delivered the machine to plaintiff at the place where the same had been received, notified the plaintiff thereof, and demanded that plaintiff make the machine work or return the notes and mortgage, but that the plaintiff failed and refused to comply with the obligations resting upon it, and has neither fixed said machine so it would work or returned to the defendant his notes and mortgage. fendant further pleads that plaintiff accepted the return of said machinery in full settlement of all claims under the contract and order.

De

[1] Appellant assigns as error the order permitting amendment of the answer, but, as the trial court offered plaintiff a continuance if in any manner surprised by the amendment which plaintiff declined to accept but elected to proceed with the trial, we are unable to see in what possible manner plaintiff could have been prejudiced, and do not deem the assignment worthy of further consideration. The case was tried to a jury and a verdict returned for defendant on all the issues.

[2] At the trial issues were submitted to the jury under the pleadings as to whether defendant had complied with the terms. and conditions in the contract in the trial of the machinery, and in giving plaintiff notice of failure of the machine to perform

according to the warranty. In connection with these issues the court instructed the jury, among other things, that, if the jury found the defendant had "substantially complied" with his contract in the respects specified, he should recover in the action. The court did not explain what would constitute a "substantial compliance" with the contract, and appellant excepted to the instruction on the ground that it gave the jury too wide a discretion, and was prejudicial to plaintiff. This instruction is doubtless open to criticism; but, in the absence of a request on the part of plaintiff for a more specifiic instruction, we do not deem the failure of the court to define the meaning of the words "substantial compliance" to be reversible error.

[3-5] At the close of defendant's evidence, plaintiff moved for direction of a verdict for insufficiency of evidence. Defendant then asked, and was given, leave to open his case for introduction of further material evidence, after which defendant again rested. Motion for direction was not thereafter renewed. Under the well-settled rule of this court, the motion, not having been renewed at the close of all the evidence, is not now available to test the sufficiency of the evidence. Rogers v. Gladiator Gold Mining Co., 21 S. D. 412, 113 N. W. 86; Greder v. Stahl, 22 S. D. 139, 115 N. W. 1129; Dring v. St. Lawrence Township, 23 S. D. 624, 122 N. W. 664. No exception was entered to the instructions of the court save the one above alluded to, and we may therefore assume that the real issue tried to the jury and understood by the parties was that, stated and defined by the instructions. The court told the jury: "The defendant claims that the failure of the consideration for those notes consists in this: That he bought of the plaintiff's local agent there in Gettysburg a J. I. Case corn shredder and husker, and that the plaintiff warranted it, by a special warranty, to do as good work as any other machine of like character in the United States under similar conditions and where the machine is of like size and rate capacity, and he says and claims that the machine did not comply with that warranty, and that it did not do either good work or as good work as other machines of like size and capacity; that, therefore,