Opinion of the Court. by this party for plaintiff. Evidence was given upon the part of defendant that it had phoned plaintiff at that time, and he had said that this party had authority to sign the order for him, but plaintiff denied the party's authority to sign the order for him, and said he knew nothing about such a telephone conversation as detailed by a witness for defendant. All of the matters here presented were questions of fact for the decision of the trial court. While no findings of fact were made by him, yet, the general verdict being in favor of plaintiff, this carried with it the findng of all disputed questions of fact necessary to sustain the verdict in favor of the plaintiff, and these were that as to the two cars delivered direct to the purchasers the sales were in reality made to the plaintiff and sales made by him to these parties, and, as to the third car, that the party sent to receive the same had no authority to sign plaintiff's name to the order, and, as to the fourth car, that plaintiff signed the order after this car had been delivered to him upon the oral warranty, and that he was not bound by his signing the order for the reason that there was no consideration for the same. In the case at bar the plaintiff, being a hardware and implement dealer, had a contract with defendant to handle implements and machinery put out by defendant, and about a year after purchasing the four automobiles from defendant he had a final settlement with defendant, and gave defendant a note in payment of the balance due defendant on account. Three of the automobiles were purchased upon account, and were carried in the said account, settled by note, as above stated. The notes given in settlement of the account were paid in full before the institution of this action, and it is admitted that no claim was made for damages at any time until this action was brought. Did International Harvester Co. v. Lawyer. this operate as a waiver of said damages? Our own court has never passed directly upon this question, and we find the authorities in the other jurisdictions not in accord. Upon a breach of warranty in the sale of an article, the purchaser has two remedies: (1) He may rescind by promptly returning the article in a reasonable time after discovering the defect, and recover the consideration paid, or offer to restore the same on condition that the seller refund what has already been paid; or (2) he may keep the article and recover in damages the difference between what the article would have been worth if it had been as represented and its actual value. The plaintiff in the case at bar has adopted the latter remedy, but the defendant says he has waived all claim for damages in paying for the automobiles without setting up any claim for damages for breach of warranty. We believe the following authorities state the more reasonable rule: "The fact that the buyer, after having used the property for some time, pays the purchase money due, or excutes his notes therefor, does not operate as a waiver of his right of action for a breach of warranty." (30 Am. & Eng. Ency. of L. p. 183.) "Under some jurisdictions, the payment of the purchase price or the giving of a note therefor, with knowledge of defects constituting a breach of warranty, is regarded as a waiver of breach, and even a promise to pay has been given like effect, especially when accompanied by an extension of time; but, according to the weight of authority, payment, part payment, or the giving of notes for the purchase price is not a waiver of a breach of warranty unless an intent to waive such breach is proven. (35 Cyc. 433; Spaulding Mfg. Co. v. Holiday, 32 Okla. 823, 124 Pac. 35; Osborne & Co. v. Walther, 12 Okla. 20, Opinion of the Court. 69 Pac. 953; Fairbanks, Morse & Co. v. Baskett, 98 Mo. App. 53, 71 S. W. 1113; Wheelock v. Berkley, 38 Ill. App. 518.) The defendant complains of the ruling of the court in admitting the testimony of certain witnesses relative to the value of the automobiles, claiming that said witnesses did not show sufficient knowledge on that subject to qualify as expert witnesses thereon. This is a matter that rests within the sound discretion of the trial judge, and his rulings thereon will not be disturbed here unless it appears that he has abused such discretion, and we do not find that he has done so in this instance. The trial court permitted, over the objection of defendant, a party who purchased one of the automobiles to testify to a conversation he had with plaintiff, wherein witness said that he told plaintiff that he was unable to get the automobile to run, and that he wanted his money back that he had paid out for it. The same witness also testified, over the objection of defendant, that plaintiff did not authorize him to sign a contract when he went after the automobile, and that he had never told plaintiff that he had signed a contract therefor. In line with plaintiff's theory of the case that he, the plaintiff, purchased the automobiles himself and then sold them to the parties upon his own warranty, we believe the admission of this testimony to be proper. We recommend that the judgment be affirmed. By the Court: It is so ordered. Navarre et al. v. Finerty. NAVARRE et al. v. FINERTY. No. 6264. Opinion Filed December 14, 1915. Second Rehearing Denied March 7, 1916. (154 Pac. 1143.) APPEAL AND ERROR-Case-Made-Time for Filing. A purported case-made which is not served within the statutory time after the judgment appealed from is entered, or within an extension of time duly allowed, is a nullity, and cannot be considered by the Supreme Court. (Syllabus by Dudley, C.) Error from Superior Court, Oklahoma County; Edward Dewes Oldfield, Judge. Action by F. C. Finerty against Louis Navarre and others. Judgment for plaintiff, and defendants Navarre bring error. Dismissed. H. R. Winn, for plaintiffs in error. Harry White, for defendant in error. Opinion by DUDLEY, C. On December 26, 1912, F. C. Finerty, plaintiff below, commenced this action in the superior court of Oklahoma county against the plaintiffs in error and others, defendants below, to foreclose a real estate mortgage. There was judgment for the plaintiff, from which the defendants Louis Navarre and Julia Navarre, his wife, have attempted to appeal. Since the petition in error was filed in this court the plaintiff, F. C. Finerty, died, and the cause has been revived in the name of May C. Finerty, administratrix of his estate. The defendant in error has filed a motion to dismiss the pretended appeal, for the reason that the purported Opinion of the Court. case-made was not served within the time allowed by the trial court. The motion for new trial was overruled on October 18, 1913, and the defendants were given 60 days from that date within which to prepare and serve casemade. On November 17, 1913, an order was made extending the time to serve case-made. That portion of the order applicable is as follows: "Orders that the defendants be, and they are hereby allowed an extension of time for the period of 60 days within which to prepare and serve case-made on appeal to the Supreme Court. * The case-made was not served within 60 days from the date of this order. On February 16, 1914, another order was made extending the time to serve case-made until April 1, 1914. The purported case-made was served on March 26, 1914. The order of November 17, 1913, does not grant 60 days' additional time from the expiration of the time theretofore given, but in plain words grants 60 days from that date. The order of February 16, 1914, granting additional time to serve the case-made, is a nullity, because the time in which to prepare and serve the same had expired. The motion to dismiss should be sustained. Soliss v. Davis, County Judge, 28 Okla. 496, 114 Pac. 609; City of Wagoner et al. v. Gibson et al., 32 Okla. 14, 121 Pac. 625; Woods v. Coleman et al., 32 Okla. 244, 122 Pac. 234; Korimer v. Collins, 31 Okla. 457, 122 Pac. 159; Lawson et al. v. Zeigler, 33 Okla. 368, 125 Pac. 724. By the Court: It is so ordered. |