Brady v. Elmer, 185 N.C. 421 (1923)

May 9, 1923 · Supreme Court of North Carolina

185 N.C. 421

J. E. BRADY v. ELMER and A. C. MOTON.

(Filed 9 May, 1923.)

Vendor and Purchaser — Warranty—Breach—Verdict—Appeal and Error —Harmless Error.

Where an action upon a note given for a Holstein bull has been united with the purchaser’s action for damages for breach of warranty in the sale of the bull, and the latter regarded as a counterclaim, the verdict of the jury, upon conflicting evidence and under a charge free from error, that there was no warranty by the plaintiff, renders immaterial defendant’s exceptions referring only to the quantum of damages for the alleged breach of warranty.

Appeal by defendant from Finley, J., at tbe July Term, 1922, of BANDOLPH.

On perusal of tbe record, it appears tbat there was an action pending in Superior Court of said county, presumably on appeal from a justice’s court, to recover on a $150 note given by defendants to plaintiff for tbe purchase price of a Holstein bull. Tbe defendants bad also sued plaintiff to recover damages to amount of $2,650 for breach of an express warranty in tbe sale of tbe bull. It having been also made to appear tbat tbe two actions grew out of tbe same transaction, and involved tbe same testimony from tbe same witnesses, an order was entered tbat they be consolidated and tried together and defendants’ action treated as a counterclaim to plaintiff’s suit. There was verdict and judgment for plaintiff, and defendants appealed.

G. H. Bedding and J. A. Spence for plaintiff.

Hammer & Moser and Brittain, Brittain & Brittain for defendants.

Hoke, J.

Tbe action, as now presented in tbe record, is to recover on a note for $150 given by defendants to plaintiff for tbe purchase price of a Holstein bull, said amount being due and unpaid. Counterclaim by defendants for $2,650 as damages for an alleged breach of an express warranty in the sale of the bull to the effect “that the bull was all right and a good and sure calf getter.” On issues submitted, the jury rendered the following verdict :

“1. What amount, if any, is the plaintiff entitled to recover of the defendant? Answer: ‘$150, with interest.’

“2. Did the plaintiff warrant and represent that the bull in question was straight and all right and a good and sure calf getter? Answer: ‘No.’

“3. Was the bull straight and all right and a good and sure calf getter ? Answer:

“4. What damages, if any, is defendant entitled to recover of plaintiff on the counterclaim ? Answer:”

Judgment for amount of the note, and defendants appealed.

There is no objection in the record affecting the verdict on the note given by defendants to plaintiff, and while the appellants have made numerous assignments of error as to the disposition of their counterclaim, some of them well worthy of consideration, they are all objections which refer only to the quantum of damages for the alleged breach of warranty, -and as the jury, under a charge free from reversible error, have found that there was no warranty given, defendant’s exceptions have become immaterial, and may not be allowed to affect the result. The judgment for plaintiff, therefore, must be affirmed.

No error.