The defendant requested the court below to instruct the jury that if they believe the evidence, they should answer the first issue “Yes.” The court below refused to give this instruction, and in this we can see no error on the facts and circumstances of this case. The issues submitted to the jury were correct, in fact, defendant made no objection, nor did he submit other issues. The controversy, in the final analysis, was one of 'fact, viz.: What was the actual commodity contained in a carload shipment, which moved from the Uvalde Rock Asphalt Company, at Houston, Texas, to the defendant, H. T. Thrower,, at Fayetteville, North Carolina, in August, 1937? If the commodity was “Asphalt Composition Facing or Flooring Tile,” it carried a freight rate of one dollar and ten cents ($1.10) per hundred pounds. If the commodity was “Asphalt Paving Blocks or Tiles,” it carried a freight rate of fifty-one cents (51c) per hundred pounds.
In the stipulation agreed upon by the parties, was the following t “That during the month of August, 1937, the freight tariffs and schedules of rates made, promulgated and filed with the Interstate Commerce Commission, and published, and applicable to shipments of freight from. Houston, Texas, to Fayetteville, North Carolina, over the routes referred to above, fixed the freight charge upon shipments of ‘asphalt composition facing or flooring tile’ from Houston, Texas, to Fayetteville,' North Carolina, over the routes referred to above at $1.10 per hundredweight and the freight charges upon shipments of ‘asphalt paving blocks or tiles’ from Houston, Texas, to Fayetteville, North Carolina, over the routes referred to above, at 51c per hundredweight.”
The plaintiff’s evidence was to the effect that the defendant knew at the time that it was tile, because he wrote upon the face of his check that the check was covering the freight charges on a shipment of “asphalt tile,” and he knew at that time, and his agent and servants knew, that was tile and not paving blocks. The defendant received the commodities and used them in paving the second and third floors of the high school building located in Fayetteville, in August, 1937. The liquid asphalt that was shipped along with it was used to cement and place the tile in firm condition upon the floors of the school building and to cement *81and hold it together, and that is what the liquid in the barrels that were shipped along with it was for. The bill of lading shows that it was packed in “389 boxes” and that tile is shipped in packs or bundles and that if it was asphalt blocks as used for paving that it would be just loaded in a car as blocks and not shipped in boxes, as was done in this ease. That the exhibit offered in this case from one’s own knowledge that it is tile, that it is not a block and that it is not asphalt, but it is a composition of some kind, made especially for the purpose of laying a floor in office buildings, and school buildings, such as it was used for in this case. That in truth and in fact this particular shipment was not asphalt paving blocks and that it was in truth asphalt composition facing or flooring tile.
The defendant denied that the evidence and contentions of plaintiff were correct. His evidence and contentions were that someone interested in getting a large amount of freight on this shipment got hold of the duplicate copy and he erased “asphalt paving blocks or tile” and inserted “389 boxes” to the first article in the bill of lading as “asphalt composition facing or flooring tile” and set up the rate from 51c to $1.10 per hundredweight; .and he contends that was wrong, that the classification as originally billed out by the people who manufactured, that their classification should govern and that you should answer the first issue “No.”
The court charged the jury, among other things: “Now, gentlemen of' the jury, if the defendant, H. T. Thrower, trading as Thrower Tile & Marble Company, has satisfied you from the evidence and by its greater weight, the burden being upon him to so satisfy you, that the commodities involved in the shipment for which the check in question was given was asphalt paving blocks or tile, as alleged in the answer, then it would be your duty to answer that first issue 'Yes’; if he has failed to so satisfy you, it will be your duty to answer it No.’ ” The defendant excepted and assigned error as to certain correspondence introduced in evidence from the shipper to him, indicating that the payment of defendant’s check was stopped at the shipper’s instance. We think this some probative evidence to indicate defendant was not the real party who stopped the payment of the check. It was, at least, some evidence of the defendant why he stopped payment of the check. Plaintiff offered in evidence,, over the defendant’s objection, the carrier’s way-bill or copy of the bill of lading, in which the commodities here in question were described and classified as commodities other than “asphalt paving blocks or tiles.” Defendant contended that this paper was incompetent for the reason that the original bill of lading was the best evidence of the matters set forth therein and had already been introduced in evidence.
*82The defendant further contended that tbe copy on its face bad been altered, and this was contrary to wbat was set forth in the original bill of lading. Be that as it may, the defendant accepted the commodities as plaintiff contends, used them and gave a check for them, and is not now permitted, at the instance of the shipper or defendant, to repudiate the matter. All of the evidence above set forth and the contentions were competent, and the fact was for the jury to determine. From the pleadings we think the burden of proof, a substantial right, was properly placed on defendant.
We think that none of the exceptions and assignments of error to the charge or evidence on the trial can be sustained. We think the charge of the court set forth the law applicable to the facts and was fair to both sides. The contentions were accurately and carefully given.
Devin, J., in Collins v. Lamb, 215 N. C., 719 (720), for the Court says: “ ‘Verdicts and judgments are not to be set aside for harmless error for mere error and no more. To accomplish this result, it must be made to appear not only that the ruling complained of is erroneous, but also that it is material and prejudicial, amounting to a denial of some substantial right.’ Wilson v. Lumber Co., 186 N. C., 56 (citing many authorities) . . . (p. 721) The record reveals the diligence of appellant’s able counsel. Nothing has been overlooked that might help his cause. But the jury has accepted the view presented by the evidence of the plaintiffs, and rendered a verdict in accord with their contentions. Upon consideration of the entire record we reach the conclusion that the judgment below should be affirmed.”
We have examined the record and able briefs of the litigants. The question is one mainly of fact. We can see no prejudicial or reversible error on the record.
No error.