Standard Fertilizer Co. v. Summerell, 202 N.C. 833 (1932)

Feb. 24, 1932 · Supreme Court of North Carolina

202 N.C. 833

STANDARD FERTILIZER COMPANY v. C. H. SUMMERELL.

(Filed 24 February, 1932.)

Appeal by defendant from Barnhill, J., at November Term, 1931, of MartiN.

No error.

Tbis is an action to recover tbe balance due on two certain notes described in tbe complaint, tO' wit, tbe sum of $1,186.89 and interest, and tbe sum of $247.87 and interest. Tbe notes sued on were executed by tbe defendant under bis seal, and are payable to tbe plaintiff or its order. Tbe said notes were due and payable on 1 November and 1 December, 1930, respectively. Tbis action was begun on 18 February, 1931.

In bis answer tbe defendant alleged that tbe consideration for tbe notes sued on was fertilizer sold to tbe defendant by tbe plaintiff; be alleges that tbe fertilizer delivered to him by tbe plaintiff was not tbe fertilizer which be purchased. He pleads in defense of plaintiff’s recovery on tbe notes, want of consideration.

Tbe issue submitted to tbe jury was answered as follows :

“Did tbe plaintiff fail to deliver to tbe defendant commercial fertilizer of tbe analysis guaranteed on tbe bag in accordance with tbe contract, as alleged? Answer: No.” •

From judgment that plaintiff recover of tbe defendant tbe sum of $1,186.89, with interest from 1 May, 1930, and tbe sum of $247.87, with interest from 12 January, 1931, and tbe costs of tbe action, tbe defendant appealed to tbe Supreme Court.

Coburn & Cobum for plaintiff.

B. A. Critcher cund 8. J. Everett for defendant.

Per Curiam:.

On tbe admissions in tbe pleadings offered in evidence by tbe plaintiff, tbe court held that tbe burden of proof on tbe issue submitted to tbe jury, without objection, was on tbe defendant. In tbis there was no error. Trust Co. v. Anagnos, 196 N. C., 327, 145 S. E., 609. Tbe evidence offered by tbe plaintiff in contradiction of tbe evidence offered by tbe defendant was properly admitted. Swift & Co. v. Aydlett, 192 N. C., 340, 135 S. E., 141. Tbe evidence was submitted to tbe jury under instructions which are free from error. Tbe defense relied on by tbe defendant was not sustained. There is no error in tbe judgment. It is affirmed.

No error.