eral officers of the company, on their cross-examination, while giving their depositions, taken on behalf of the defendants. These objections pertain to questions and answers as to the powers and duties of Mr. Clary. The defendants had examined the witnesses as to such powers in the direct examinations. The objections are made on the ground that Mr. Clary's real authority cannot be shown, when he has been held out to the world as a general agent. There is no evidence that the company has held him out to the public as an agent with general powers. The very contract in suit states that no agent has a right to waive any of the provisions of the contract, and the order was made on the printed form, which advised the defendants that no person or agent had authority to change or waive its provisions. Reeves v. Corrigan, 3 N. D. 425, 57 N. W. Rep. 80.

With no claim made that a written notice, or notice of any kind, was given to the company at Racine, it remains to be decided whether the provisions of the order requiring such notice became unnecessary, in view of Mr. Clary's conduct in sending an expert to repair the machine on request made direct to him. In this court, similar questions have been before the court in two instances. In Fahey v. Mechine Co., 3 N. D. 220, 55 N. W. Rep. 580, 44 Am. St. Rep. 554, as in this case, there was no pretense of having sent the notice required to the company, and the claim was made that the necessity of giving the notice had been waived. On the question of the necessity of complying with the requirements of the contract, the court said: "To recover, it was incumbent on plaintiff to show that he had performed all the conditions precedent of the warranty to be performed on his part. This he did not do. Mere breach of the warranty did not entitle him to rely upon its promises. He must have taken action to hold the defendant to its warranty after its breach. It is only upon giving written notice to the agent from whom he received the machine, and also to the Esterley Harvester Machine Company, at Whitewater, Wisconsin, that he is allowed to avail himself of the warranty." Upon the question of waiver of the notice, the court said: "The waiver of notice must come from some agent having power to waive it." In Manufacturing Co. v. Lincoln, 4 N. D. 410, 61 N. W. Rep. 145, the same question was considered and discussed; but it was there held that inasmuch as a notice was addressed to the machine company, but at a place where the company had an office, instead of at the main office, where the contract provided it should be sent, it was a question properly submitted to the jury, to determine whether the notice was received and acted upon by the company at the place provided for in the contract. While this case cannot be cited as a precedent on the question involved, still what is said therein is applicable to the case at bar. In that case it is said: "If the local agents, without authority to do so, and without the approval of the managing office, sent out certain experts of their own selection to fix the machine, we are quite clear that such action could not le construed as a waiver of the stipulation as to giving notice." In this

case no claim is made that any attempt to notify the company at Racine was made, and the record contains no inference or intimation that the company was in any way notified at Racine of the defects claimed to exist. It is true, in general, that notice to an agent is notice to the principal; but in this case notice to the company at a particular place in a particular manner is made a condition precedent to the right to return the machine, and all other modes of notice to the agent are not effectual, under the general principle stated, in the absence of a showing that the company did receive notice, or waived it, or ratified the acts of the agent. A similar question was before the supreme court of Minnesota in Nichols v. Knowles, 18 N. W. Rep. 413. The court said: "In other words, the acceptance of the oral notice by Hickman, by his promise, without objection, to come and fix the machine, is the waiver contended for. In our opinion, there is a fatal objection to the defendants' proposition. There is no evidence whatever tending to show that Hickman was authorized to receive the notice provided for in the contract of warranty, for or in behalf of the plaintiffs; and no evidence whatever to show that he had the least authority to waive it, nor that the notice which was given to him was ever accepted or acted upon by plaintiffs, or his action in the premises ratified by them. The notice given to Hickman was therefore wholly ineffectual to bind the plaintiffs." In Irle v. Nichols-Shepard Co., 89 Ill. App. 619, the court said: "Appellants repeatedly attempted to get before the jury proof that the machine would not work satisfactorily. They did not pretend to have notified appellee by registered letter at Battle Creek, Michigan, of the failure of the machinery to fulfill the warranty, as required by the contract, but contended that appellee acted upon such notice as was given, and thereby waived notice by registered letter. The difficulty with the contention as to waiver is that there was no competent proof of any notice whatever, and no proof that persons who came to examine the machinery were sent by appellee. The copy of the letter to appellee, dated August 6th, was offered in evidence; but, as no notice to produce the original had been given, the court properly sustained an objection to it. Three men did at different times visit the machine, and attempt to remedy the alleged defect; but they seem to have done so at the instance of one C. J. Gottshall, a general state agent of appellee, residing in Bloomington. It nowhere appears that they were sent by appellee, or that Gottshall had any instructions from appellee to send them. Gottshall testified that his duties as general agent required him to superintend local agents and companies selling appellee's machinery in the state, but that he had nothing to do with machinery after being sold. The notice sent by appellants to him therefor could in no sense be regarded as a notice to appellee, and any action taken by him under such notice could not affect appellee, unless recognized by it. The power of an agent to bind a corporation is limited to the scope of his agency." In Trapp v. New Birdsall Co. (Wis.) 85 N. W. Rep. 478, the court said: "There is evidence that one of appellant's agents visited the machine

after the notice is claimed to have been given, but there is no evidence that he was sent by appellant, or that appellant had knowledge of his conduct. The mere fact that the agent so acted did not bind the appellant. The contract expressly provided that no agent should possess authority to add tc it in any way, or to waive any of its provisions." See, also, Aultman & Taylor Co. v. Gunderson, 6 S. D. 226, 60 N. W. Rep. 859, 55 Am. St. Rep. 837. In that case written notice was given to the company at the home office and to a local agent, but not to the agent from whom the machine was purchased, and an agent of the company visited the machine and endeavored to make it work after such notices were given. The rule seems to be settled that if the seller acts on or recognizes a defective notice, or if an agent with authority to act in that particular matter, acts without the notice being given just as prescribed, the giving of the notice in the way provided in the contract is waived. But the company must act through an agent having authority, and acts of an agent without general authority, or without special authority in the particular case, are not binding on the company, and the provisions of the contract as to giving notice are not waived, and cannot be thus waived. The agent, Clary, had no authority to waive the provisions of the contract. The contract so stated. He did not act under authority from the company, and the company has not ratified his acts. The terms of the warranty have not been complied with. There was therefore no rescission of the contract by the defendants. The contract pointed out the way to rescind it. It pointed out the penalty of failure to do A compliance with the contract or order as to notice imposed no hard or difficult task. The defendants should have done as the contract provided, or dealt with authorized agents. The contract is explicit, and it is not for the courts to render its terms inoperative, unless conditions agreed upon have not been performed, or are waived by the parties or authorized agents. The defendants urge that the case at bar is ruled by Thresher Co. v. Kennedy (Ind. App.) 34 N. E. Rep. 856, and Machine Co. v. Mann (Kan.) 22 Pac. Rep. 417. In the first case notice was given to the general agent, and he and the defendants notified the company in writing that the machine would not work; and, further, a payment was made on the notes, and sent to the company, with a statement that the machine would not work, and that such payment was made on condition that the machine be made to work, and the company retained such money. Further, the agent in that case had authority to make sales, and the court held the provisions of the contract waived by an agent having authority to do so. In the other case there was no evidence that there was any restriction on the powers of the agent, and there was evidence that he, as manager of a branch office, had full powers to sell machines and receive those returned as unsatisfactory, and to refund what might, have been paid on them. Under such circumstances, the court held that he had power to waive the provisions of the contract as to notice. Neither of these cases is in point.

So.

The judgment is reversed, and the district court directed to order judgment in favor of the plaintiff in accordance with the demand of the complaint. All concur.

(92 N. W. Rep. 826.)

OTTO BUCHOLZ VS. ARTHUR E. LEAD BETTER et al.

Cancellation of Contract-Notice.

Action to recover possession and to quiet title as against the defendants. B. was the owner of the fee of the land in question, and on October 2, 1899, entered into a written agreemnt to sell the same to plaintiff. On March 16, 1901, pursuant to certain provisions in the contract, a notice was sent to the plaintiff in behalf of B., purporting to cancel and annul the contract on the ground of alleged defaults of the plaintiff thereunder. Evidence examined, and held, that the notice of cancellation did not operate to annul the plaintiff's contract of purchase.

Wrongful Possession of Land.

The defendant Arthur E. Leadbetter served an answer to the complaint, wherein he disclaimed any title or right in or to the land, or right to the possession thereof. The defendant Anna M. Leadbetter entered into a contract with B. on March 22, 1901, whereby she agreed to purchase the land from B., and under which she went into possession of the land at that date, without the knowledge or consent of the plaintiff. Evidence examined, and held, that she bought with knowledge of the prior rights of the plaintiff as purchaser of the land, and hence wrongfully took possession, and holds possession unlawfully as against the plaintiff.

Judgment Quieting Title Affirmed.

The judgment of the trial court quieting title in the plaintiff and awarding the plaintiff possession is accordingly affirmed.

Appeal from District Court, Cass county; Pollock, J.

Action by Otto Buchholz against Arthur E. Leadbetter and Anna Leadbetter. Judgment for plaintiff, and defendants appeal. Affirmed. M. A. Hildreth, for appellants.

Benton, Lovell & Holt, for respondent.

WALLIN, C. J. This is an action to recover the possession of a tract of land in Cass county, and to quiet the title of said land as between the plaintiff and the defendants. The action was tried without a jury, and the district court, by its judgment, quieted the title in the plaintiff, and decreed that plaintiff should recover the possession. Defendants appeal from the judgment, and the entire case is before this court for trial anew.

There is little dispute in the evidence, and the facts which we deem to be decisive of the result in this court are practically uncontroverted.

These facts are as follows: One Joseph M. Bassett of Worcester, Mass., is, and at all times in question was, the owner of the legal title to the land in dispute, and at all times in question one George Phelps, an attorney at law, residing at Fargo, N. D., was the authorized agent of said Joseph M. Bassett, and acted as such in all of the transactions relating to the land which appear in this record. It is undisputed that a written contract of sale of the land between Joseph M. Bassett and the plaintiff was entered into on the 2d day of October, 1899, whereby the plaintiff purchased the land on the so-called "crop payment plan," for an agreed consideration of $10,000. This contract need not be set out at length. It will suffice to say that by its terms the plaintiff, among other things, agreed to perform certain obligations set out in the instrument as conditions precedent to acquiring the fee title. Among such obligations are the following: To pay interest annually on the unpaid purchase price until the whole should be paid; to farm the land in the manner described in the writing; to deliver at an elevator each year one-half of the crops raised on the land, and to take elevator tickets therefor in the name of said Joseph M. Bassett, and deliver the same to Bassett or his agent. It was further stipulated that the plaintiff should not sell any right in the land arising under said agreement without the written consent of said Bassett. It was further agreed that the proceeds of said one-half of the crops so agreed to be delivered should be applied by Bassett-First, in extinguishing unpaid taxes on the land; and, second, in payment of accrued interest; and the balance, if any, was to go to reduce the principal sum due on the purchase money. The writing also authorized the plaintiff to take possession of the land. The writing embraced the following provisions: "Said second party agrees that, in default of the performance of the covenants, terms. and conditions of this contract by him to be performed, or default in the payment of either or any of the said sums of money hereinbefore and by the terms of this contract agreed to be paid, or the interest thereon, or in the default of the payment of said taxes, or any other sum of money hereinbefore agreed to be paid, the principal sum of ten thousand ($10,000), or so much thereof as shall remain unpaid, and interest, shall immediately become due and payable, and may be collected by foreclosure of this contract or otherwise; or, at his election, said first party may at any time upon such default, or at any time thereafter, and upon the failure of said second party to make such payments, or any of them, punctually, and upon the strict terms and times above limited, and likewise to perform and complete all and each of the agreements and stipulations aforesaid strictly and literally without failure or default, declare this contract terminated and forfeited, and may enter and take possession of said land, retaining all sums that have been paid under this contract as rent of said premises to the date of such declaration; it being agreed and understood that time is, and it is hereby expressly declared to be, of the essence of this contract. A notice of the forfeiture and termination of this