Missouri. State use of Maries County v. Johnson (1874) 55 Mo. 90. North Carolina.-Crumpler v. Governor (1826) 12 N. C. (1 Dev. L.) 52; Governor v. Matlock (1827) 12 N. C. (1 Dev. L.) 214. Texas.-Broad v. Paris (1886) 66 Tex. 119, 18 S. W. 342; Kempner v. Galveston County (1889) 73 Tex. 216, 11 S. W. 188; Connor v. Zachry (1909) 54 Tex. Civ. App. 188, 115 S. W. 867, 117 S. W. 177. West Virginia.-Board of Education v. Rader (1896) 42 W. Va. 178, 24 S. E. 680. Wisconsin-Milwaukee County v. Ehlers (1878) 45 Wis. 281; Milwaukee County v. Pabst (1888) 70 Wis. 352, 35 N. W. 337. "It is manifest that the performance of the special duty is protected by the special bond required by the statute which imposes it, while the general duty is protected by the general bond." State v. Felton (Miss.) supra. "The general rule is that where an officer is required to perform a duty which is special in its nature, and he is required to give a special bond for the faithful performance of such duty, in the absence of any declaration that the general bondsmen shall also be liable, no such liability attaches." Milwaukee County v. Ehlers (Wis.) supra. Where there is no provision made by the legislature requiring an officer to furnish a special bond for the safekeeping of a particular fund, the securities on his general bond are liable for a loss occurring to that fund, though he does in fact give a special bond covering that fund. See the reported case (BATH V. MCBRIDE, ante, 1428). Illustrations. ties on the general bond should remain liable. In Briggs v. Manning (Ark.) supra, it was held that where a sheriff had given a bond to cover money received as public administrator, as required by statute, the sureties on his general bond could not be held liable for a deficiency occurring in this fund. "Such bond, when filed, is like a special fund set apart for their protection and security, and, in order to fully answer its purpose, the sureties thereon must be primarily liable for any losses resulting from a failure to comply with its conditions; otherwise, it might be entirely useless and unnecessary." In Morrow v. Wood (Ala.) supra, it was held that the sureties on the general bond of a treasurer were not liable for the loss of money belonging to the school fund, where a statute provided for the giving of a special bond with respect to this fund, although no special bond was given. It was held that the action of the legislature in providing for a special bond for this fund excluded the idea that the sure In Anderson v. Thompson (Ky.) supra, it was held that the sureties on the general bond of a sheriff were not liable for a failure of the sheriff to account for money collected as a "railroad tax," as this fund was protected by a special bond provided for by stat ute (§ 3, art. 2, chap. 26, Revised Statutes). The sureties on the special bond would alone be liable for a default in respect to this fund, as the bond they had executed contained a covenant to that effect. In State v. Young (1877) 23 Minn. 551, the sureties on a general bond of a county treasurer were held not to be liable for the loss of money belonging to a school fund of which the treasurer had charge, as a statute provided that a special bond should be furnished to cover this fund, and in respect to this fund the treasurer was acting beyond and outside of the scope of the general bond. He really held two offices, one being county treasurer, and the other custodian of the money received for the purchase of school and univer sity lands. In Redwood County v. Tower (1881) 28 Minn. 45, 8 N. W. 907, it was held, following State v. Young (Minn.) supra, that a county treasurer was not liable on his general bond for a loss of money received by him as the result of sales of school and university lands, as this fund was covered by a special bond given by the treasurer for that purpose. In Swift County v. Knudson (1898) 71 Minn. 461, 74 N. W. 158, it was held that the sureties of a county treasurer on his general bond could not be held liable for a loss of money collected by him from the sale of school, university, or public lands, as this liability was covered by a special bond, and only the sureties on that bond could be held. In State v. Felton (1882) 59 Miss. 402, it was held that where a county treasurer was by law required to give two bonds, one a general bond covering his duties generally, and the other a special bond for the protection of a school fund, the sureties on the general bond could not be held liable for a default by the county treasurer in relation to the school fund. In State use of Maries County v. Johnson (1874) 55 Mo. 80, it was held that sureties on the general bond of a county treasurer were not liable for a loss of school funds, as to which a special bond was required by law to be executed. "The sureties on the general bond are only held for his duties as county treasurer proper, and not for the special duties imposed on him by the School Law, for which a separate and distinct bond is required." In Crumpler v. Governor (1826) 12 N. C. (1 Dev. L.) 52, it was held that a sheriff was not liable on a bond given for the performance of his general duties as sheriff for a loss of county taxes, for which a special bond had been given. Each bond, the court said, must be limited to the specific purpose for which it was given. In Governor v. Matlock (1827) 12 N. C. (1 Dev. L.) 214, it was held that the sureties on the general bond of a sheriff were not liable for a loss of money collected as taxes, where that fund was covered by a special bond. In Broad v. Paris (1886) 66 Tex. 119, 18 S. W. 342, it appeared that a city treasurer had defaulted in his accounts, and suit was brought on his general bond against the sureties, who set up as a defense that the defalcations were out of the school fund, and that they were, therefore, not liable, as the law (art. 3791 of the Revised Statutes) required that a special bond should be executed to cover the school fund. It was held that the sureties on the general bond could not be held liable for a defalcation from the special fund. In Kempner v. Galveston County (1889) 73 Tex. 216, 11 S. W. 188, the statut under consideration required the county treasurer to give two bonds, one a general bond intended to secure the performance of all his duties except those relating to the available school fund, the other to secure only the safe-keeping and faithful disbursement of this fund. It was held that the sureties on the general bond were liable for the acts of the county treasurer as to his general duties, and also as to those involving the nonavailable or permanent school fund. In Connor v. Zachry (1909) 54 Tex. Civ. App. 188, 115 S. W. 867, 117 S. W. 177, it appeared that a county treasurer was required by law to give two bonds, one a general bond for the faithful performance of his duties as county treasurer, and the other a special bond to secure the safe-keeping of the school fund. It was held, in an action on the general bond, that the county treasurer and his sureties were not liable for a loss sustained to the school fund. In Board of Education v. Rader (1896) 42 W. Va. 178, 24 S. E. 688, it was held that the sureties on the general bond of a sheriff were not liable for a loss of money belonging to the school fund, as this fund was protected by a special bond, as provided by statute. In Milwaukee County v. Ehlers (1878) 45 Wis. 281, it appeared that a county treasurer had misappropriated money belonging to a fund set aside for the purpose of building a courthouse. A statute required that a special bond should be given for the faithful performance of the treasurer's duties in respect to this fund. It was accordingly held that the sureties on the general bond were not liable for a loss of money belonging to the courthouse fund. See to the same effect Milwaukee County v. Pabst (1888) 70 Wis. 352, 35 N. W. 337. B. F. D. 1. Where in a single contract an oil tractor engine and gang plows, each represented to be perfectly suited to the other, are purchased together from the same company at the same time and for the specific purpose of plowing, in such case the fact that the engine is supplied by the selling company from its house in one state and the plows from its house in another state, and the fact that they are ordered on separate order blanks and separate notes given for each, do not render the contract divisible, in the absence of other evidence that it was the intention of the parties that it should be divisible. [See note on this question beginning on page 1442.] notice condition warranty precedent. 2. Where a traction engine is purchased under contract warranting the engine to do certain work, and the contract contains the further provision that if, inside of six days from the date of its first use, it shall fail to fill the warranty, notice shall be given the seller of the defects and a reasonable time given the seller to remedy the defects, and the further provision that "the use of such engine after the expiration of six days shall be conclusive evidence of the acceptance of same by the purchaser," held, that such a provision does not constitute a condition precedent to the purchaser's right to a rescission where the holding and use of such engine after the six days has been at the instance and request of the seller and for the benefit of the seller. [See 24 R. C. L. p. 293.] Trial instructions - correctness. 3. (a) Requested instructions amined, and held to not state the law applicable to the issues involved. ex (b) Where a failure by a purchaser to make tender within the time provided for in a contract is the result of the request of the seller, and where such delay is due to the fault of the seller, and due to no fault of the purchaser, it is not error for the court to refuse to submit to the jury the ques Headnotes by HARRISON, J. tion whether tender has been made within a reasonable time. [See 14 R. C. L. p. 784, and 24 R. C. L. p. 289.] -refusal to submit immaterial ques tions. 4. (a) Instructions of the court examined, and held to substantially state the law applicable to the facts and issues in the case. (b) Where a contract of purchase of an oil traction engine contains warranty that "the engine will develop certain horse power," and also a warranty that "the oil-cooling device will keep the cylinders sufficiently cooled for the successful operation of the engine," and it appears from the evidence that the failure of the engine to do satisfactory work is due wholly to the defects in the cooling device, it is immaterial in such case whether the engine develops the horse power it is warranted to develop, and in such case it is not error for the court to refuse to submit the question of fact to the jury whether the engine will develop the horse power it was warranted to develop. [See 2 R. C. L. 261, and 14 R. C. L. 783.] (Okla., 181 Pac. 288.) work, and, relying upon such warranty, the purchaser executes his promissory notes in payment thereof, and such warranty is breached by the seller, and the purchaser seeks a rescission of the contract because of the breach, he will not be denied the right also to recover the actual damages he has sustained by reason of the breach. [See 24 R. C. L. 256.] ERROR to the District Court for Tillman County (Wilson, Jr., J.) to review a judgment in favor of defendant on his counterclaim, and an order overruling a motion for new trial, in an action brought to recover the amount alleged to be due on certain promissory notes. Affirmed. The facts are stated in the opinion of the court. Where machinery or any property is bought under a written contract, and the manner by which the sale may be rescinded is provided in the contract, the vendee is bound to comply with the terms of said contract or show a waiver of the provisions by the vendor. Miller v. Mickel, 9 Colo. 331, 21 Pac. 240, 15 Mor. Min. Rep. 355; Merriman · v. Anselment, 86 Minn. 6, 89 N. W. 1125; Rowell v. Oleson, 32 Minn. 288, 20 N. W. 227; Updegrove v. Gould Balance Valve Co. 57 Okla. 245, 156 Pac. 684; Hope v. Peck, 38 Okla. 531, 134 Pac. 33; Scott v. Vulcan Iron Works Co. 31 Okla. 344, 122 Pac. 186; King v. Towsley, 64 Iowa, 75, 19 N. W. 859; Dwelling-House Ins. Co. v. Johnson, 47 Kan. 1, 27 Pac. 100. Before a party is entitled to rescind a contract he must, upon the discovery of the fraud or breach of warranty, within a reasonable time, restore to the other party everything of value that he has received therefrom, or must offer to restore the same. Robinson v. Roberts, 20 Okla. 787, 95 Pac. 246; Spaulding Mfg. Co. v. Holiday, 32 Okla. 823, 124 Pac. 35. When a contract has been entered into, and the manner of rescinding is provided in said contract, the remedy provided is an exclusive one and must be followed by the parties thereto. Scott v. Vulcan Iron Works Co. 31 Okla. 344, 122 Pac. 186; King v. Towsley, 64 Iowa, 75, 19 N. W. 859. Failing to notify plaintiff that the engine failed to fulfil the warranty, and retaining the engine after six days' use, defendant was bound to accept the same, and thereby waived all damages against the company. Minnesota Thresher Mfg. Co. v. Lincoln, 4 N. D. 410, 61 N. W. 145; Murphy v. Russell, 8 Idaho, 133, 67 Pac. 421; Furneaux v. Esterly, 36 Kan. 539, 13 Pac. 824; Fred W. Wolf Co. v. - Northwestern Dairy Co. 55 Wash. 665, 104 Pac. 1123; C. Aultman & Co. v. McKinney, Tex. Civ. App. 26 S. W. 267; Thomas Mfg. Co. v. Griffin, 16 Tex. Civ. App. 188, 40 S. W. 755; J. I. Case Threshing Mach. Co. v. Hall, 32 Tex. Civ. App. 214, 73 S. W. 835. Having once elected to sue for damages for breach of warranty, defendant could not afterwards change his position and seek to rescind. Luger Furniture Co. v. Street, 6 Okla. 312, 50 Pac. 125; Blake-Rutherford Farms Co. v. Holt Mfg. Co. 70 Wash. 192, 126 Pac. 418; Robb v. Vos, 155 U. S. 13, 39 L. ed. 52, 15 Sup. Ct. Rep. 4; Sweet v. Montpelier Sav. Bank & T. Co. 69 Kan. 641, 77 Pac. 538; Kansas City Live Stock Commission Co. v. Bank of Hamlin, 79 Kan. 763, 24 L.R.A. (N.S.) 490, 101 Pac. 617, 17 Ann. Cas. 956. Even though the purchase was covered by the contract, yet where separate prices are given, the contract is divisible, and a rescission of part of the divisible contract does not entitle the defendant to rescission as to the other. Aultman & T. Co. v. Lawson, 100 Iowa, 569, 69 N. W. 865; Nichols & S. Co. v. Wiedmann, 72 Minn. 344, 75 N. W. 208, 76 N. W. 41; Nichols & S. Co. v. Chase, 103 Wis. 570, 79 N. W. 772; Westbrook v. Reeves, 133 Iowa, 655, 111 N. W. 11; Northwest Thresher Co. v. Mehlhoff, 23 S. D. 476, 122 N. W. 428. Messrs. Wilson & Roe, for defendant in error: Even if defendant had made such an election as would estop him to ask a rescission, plaintiff, in order to take advantage of same, would have had to plead such an estoppel as an affirmative issue. Fidelity Mut. L. Ins. Co. v. Dean, 57 Okla. 84, 156 Pac. 304; Blakemore v. Johnson, 24 Okla. 544, 103 Pac. 554; Cooper v. Flesner, 24 Okla. 47, 23 L.R.A. (N.S.) 1180, 103 Pac. 1016, 20 Ann. Cas. 29; Tonkawa Mill. Co. v. Tonkawa, 15 Okla. 672, 83 Pac. 915. Young v. Blackert, 51 Okla. 285, 151 Pac. 1057; Barber Medicine Co. v. Bradley, 48 Okla. 82, 150 Pac. 127; Rawlings v. Ufer, Okla. —, 161 Pac. 183; St. Louis & S. F. R. Co. v. Richards, 23 Okla. 256, 23 L.R.A. (N.S.) 1032, 102 Pac. 92; Creek Land & Improv. Co. v. Davis, 28 Okla. 579, 115 Pac. 468; Hills v. National Albany Exch. Bank, 105 U. S. 319, 26 L. ed. 1052. Whether defendant acted within reasonable time in notifying plaintiff of the fact that he would not accept the machinery, and that it was at the plaintiff's disposal, was, under the circumstances of the case, a question of law for the court. Barber Medicine Co. v. Bradley, 48 Okla. 82, 150 Pac. 127; Couch v. O'Brien, 41 Okla. 76, 136 Pac. 1088; Luger Furniture Co. v. Street, 6 Okla. 312, 50 Pac. 125. Although the terms of a written obligation, assumed to be valid, cannot be varied by parol, it may be shown by parol what caused the party thus to obligate himself, and thereby test the question whether he is legally bound, as the writing imports, or whether he is by any cause wholly or partially freed from any liability thereon. Rice v. Rice, 101 Kan. 20, 165 Pac. 799; Mt. Hope Nurseries Co. v. Jackson, 36 Okla. 273, 45 L.R.A. (N.S.) 243, 128 Pac. 250; Port Huron Mach. Co. v. Davis, Iowa, - 162 N. W. 228. The covenants of an entire contract are, of course, material and dependent, and covenants are to be considered dependent or independent, according to the intention of the parties. Davidson v. Gaskill, 32 Okla. 40, 38 L.R.A. (N.S.) 692, 121 Pac. 649; Dun v. T. J. Cannon Co. 51 Okla. 382, 151 Pac. 1167; Meek v. Daugherty, 21 Okla. 859, 97 Pac. 557. Harrison, J., delivered the opin ion of the court: The governing facts in this case are that in June, 1914, plaintiff in error, the Hart-Parr Company, a corporation of Charles City, Iowa, sold to defendant in error, Joseph T. Duncan, a certain 40 horse pow er oil tractor engine and two sixfurrow disc plows, taking in payment Duncan's five promissory notes, aggregating $2,785, secured by mortgage on the engine and plows. The engine was warranted to do good work, but would not do so, and could not be made to do so. Duncan notified the Hart-Parr Company of such fact, and refused to pay the notes because of the worthlessness of the engine, whereupon the HartParr Company brought suit on the notes. Duncan answered, denying liability on the notes because of breach of warranty by the company, and also asked for affirmative relief in damages alleged to have been caused by the company in selling him a defective engine. The company replied to Duncan's answer, and the case was tried upon the issues thus formed, resulting in a verdict and judgment releasing Duncan from liability on the notes, and giving him damages in the sum of $294.68, the amount paid by him for freight on the engine. From such judgment and order overruling motion for new trial the Hart-Parr Company appeals upon 15 specific assignments of errors, including the assignment that the court erred in overruling motion for new trial, which motion itself contained 14 grounds for a new trial. The entire assignment of errors, however, is presented and argued in the plaintiff in error's brief under the following topics: (1) The question of tender. (2) A refusal to give requested instructions. (3) Errors in the instructions given by the court. (4) The defendant not entitled to rescind. (5) Errors in the verdict and judgment in releasing defendant from liability on the notes given for the plows. Under the first proposition it is contended by plaintiff in error that the defendant had not complied with the provision of the contract as to tender of the engine, and was |