At the close of plaintiff’s evidence and at the close of all the evidence, the plaintiff made motions in the court below for judgment as in case of nonsuit. C. S., 567. The court below refused the motions and in this we can see no error.
In the record is the following: “The plaintiff announced in open court that the only thing he was seeking to recover was the cost of the action and the defendant admitted in open court that the plaintiff was the owner and entitled to the possession of the tractor described in the complaint.”
*317“Tbe issue tendered by plaintiff was: ‘Is plaintiff tbe owner and entitled to possession of tbe tractor described in tbe complaint?’ Tbe court declined to submit tbe issue tendered by tbe plaintiff because of defendant’s admission in open court tbat tbe plaintiff was tbe owner and entitled to tbe immediate possession of tbe tractor.” Tbe court below submitted tbe issue set out in tbe record, wbicb was answered in favor of defendant.
Tbe plaintiff contends tbat tbe written contract between tbe parties as to warranties and representations cannot be varied by oral testimony. Tbis principle is not applicable on tbe present record. Plaintiff introduced tbe written “warranty and agreement” and in bis testimony stated on cross-examination: “I sold bim tbe tractor for use in logging operations and understood be was going to use it in logging.”
In Willis v. New Bern, 191 N. C., 507 (514), is tbe following: “Tbe rule is tbat if evidence offered by one party is objected to by tbe adverse party and thereafter tbe objecting party elicits tbe same evidence, tbe benefit of tbe objection is lost, and further, if on cross-examination evidence is developed without objection, tbe adverse party can offer evidence in reply relating to tbe same questions, even though such evidence in reply might have been incompetent in tbe first instance.” Bryant v. Reedy, 214 N. C., 748 (754).
It seems tbat tbis answer was more than necessary to tbe question asked plaintiff and there should have been a motion to strike.
In Keller v. Furniture Co., 199 N. C., 413 (416), is tbe following: “If a witness gives an answer wbicb is not responsive to a question, tbe proper course is a motion to strike out tbe answer or to instruct tbe jury to disregard it. Hodges v. Wilson, 165 N. C., 323; Godfrey v. Power Co., 190 N. C., 24 (31).”
Tbe plaintiff introduced similar evidence showing be knew tbe tractor was to be used in logging and was sold for tbat purpose.
Max Stapps, a witness for plaintiff, testified, in part: “I put a tractor bitch on tbe tractor. It is something to bitch a long cart to, not a trailer. Mr. Johnson gave me tbe order to do tbat. . . . They wanted tbe trailer bitch exactly level with tbe back seat in order to make a right straight pull with tbe log cart. Tbat tractor bitch is made for bitching a long cart tongue.”
R. G. Batson, witness for plaintiff, testified, in part: “Q. Have you observed tbe use of tbis type of tractor in logging operations ? Ans.: Yes, sir, I have demonstrated to several. ... I am familiar with tbe method or use of these tractors in connection with pulling logs. We use tbis tractor for hauling logs. . . . Tbe logs are under tbe tongue of tbe cart and tbe logs tbat bang under tbis tongue are about a foot of tbe ground and keep tbe tractor from turning over as long as they are *318bitched in the tongue. ... I took this tractor down there. I explained to the people at Mr. Johnson’s place the operation of it. I don’t think Mr. Johnson was there. That was on Saturday when I carried the tractor down. ... I operated the tractor. It didn’t do so good on pulling the log because we had it down a hill. We didn’t have a cart where the hitch was put on to pull, we were just snaking logs. ... I took it and made a couple of loads with it down to the woods and it operated all right, in other words, it didn’t rear up. I asked them if that was the load they usually carried and they said, ‘Yes.’ I put the tongue in. I told them not to put nothing on top of there but that tongue to the log wagon. With the tongue in there when I was there it operated all right. There was plenty of power.”
All of the above evidence of plaintiff indicates that the tractor was sold to be used in logging. It is well settled that an objection to evidence is immaterial where the same evidence is later admitted without objection. In this case the plaintiff introduced evidence that the tractor was to be used in logging. The case was tried on the theory that the tractor was for use in logging.
It was contended by plaintiff that in the contract was the following: “Retention of possession or continued use shall constitute an acceptance and satisfaction of warranty.” Defendant contended that this provision was waived and testified: “Q. When was the conversation with Mr. Edgerton in which he told you what to do with the tractor ? Ans.: The next week I and my daughter came here and drove to his place of business and talked with him about it and he told me what to do. Q. Did you comply with his instructions? Ans.: Yes, sir. Mr. Edgerton never made any request or demand upon me for any payment on this tractor. . . . Q. What, if anything, occurred between you and Mr. Edgerton with reference to a refund of all your money ? Ans.: I told him I wanted him to take the tractor back and give me my money. He said where would he put it. I told him anywhere and he said roll it up in the yard until the Insurance Company settles their part. He never refunded my money.”
We think this evidence sufficient to be submitted to the jury on the question that there was no breach of warranty, on this aspect. The defendant testified, in part: “Q. Did you state to Mr. Edgerton the purpose for which the tractor was being purchased? Ans.: I told him I was purchasing it for use in the lumber and logging business. I bought the tractor for $1,085.00, paying $385.00 cash. . . . Q. After the tractor was left there with you state whether or not you gave the tractor a trial and within two days? Ans.: We started hauling that morning and messed with it all day until about 3:00 or 3:30. It wouldn’t pull, would rear up and draw-bar would drag the ground. I *319went to Dixon’s to a little store and called Mr. Edgerton, tbat was Monday, and on Tuesday he sent the mechanic about 4:00 or 5:00 o’clock; they went to the woods, got a load of logs — it wouldn’t pull with them, reared up and the draw-bar dragged the ground.” There was evidence on the part of defendant that he gave the tractor a fair trial.
There was evidence, pro and con, whether the tractor “failed to work properly,” all of this was left to the jury under proper instruction. The amount due ($385.00) was fully sustained by the evidence.
After reading with care the record and briefs of the able counsel, we can see no prejudicial error of the court below in the admission and exclusion of testimony during the trial or in the charge of the court below. The court below gave the law applicable to the facts clearly and accurately. The controversy was one mostly of fact, which was decided in favor of defendant. In the judgment of the court below, we find no prejudicial or reversible error.
No error.