Some controversy having arisen between plaintiff and defendant as to tbe balance due on a quantity of bay purchased from tbe defendant, tbe plaintiff adopted tbe procedure of instituting an action to determine tbe amount be owed. However, tbe defendant having answered and set up tbe amount be claimed was due, questions as to tbe form and sufficiency of tbe complaint are not presented.
*219Tbe plaintiff bottomed bis action on breach of implied warranty in tbe sale of tbe bay, in tbat a portion of it was unfit for tbe use for wbicb it was intended. He offered evidence tending to sbow tbat xnucb of tbe bay delivered contained sticks, stones and rubbish unfit for food for cattle and bad to be thrown away. He testified one-third of tbe bay was good, one-third was passable, and one-third no good. Said be: “Cattle will not eat it. . . ., it can’t be classified as bay.” A number of truck loads of this worthless material was hauled away and thrown in tbe gulleys. He testified be contracted for good lespedeza bay; tbat tbe bay was delivered in installments (ten) over a period of several weeks; tbat tbe first deliveries were all right, and tbat be did not have opportunity to inspect all later deliveries. Plaintiff paid $825, about half of tbe contract price, and admitted be owed a portion of tbe balance, but claimed reduction in tbe amount on account of breach of implied warranty as to a substantial part of tbe bay delivered.
Tbe defendant’s evidence was sharply contradictory and tended to sbow tbat plaintiff bad gotten what be contracted to buy; tbat it was received without objection, part of it used, and $825 paid on account without criticism, and tbat only when defendant began to press him for tbe balance was any complaint made.
Plaintiff assigns error in tbe court’s instructions to tbe jury, in tbat it was stated tbat tbe plaintiff claimed be owed nothing, and tbe case was in effect presented as one in wbicb tbe defendant must recover all be claimed or nothing. Tbe court stated tbe contentions of tbe parties as being tbat plaintiff contended be owed tbe defendant nothing, and tbat defendant contended plaintiff owed him $859.13. After charging tbe jury if they found tbat plaintiff purchased tbe bay in question from tbe defendant, and tbat plaintiff inspected tbe bay and accepted tbe same, they should answer tbe issue $859.13 with interest, tbe court said, “If, on tbe other band, gentlemen of tbe jury, you find tbat tbe bay in question was purchased by plaintiff from defendant, and tbat said bay was not reasonably fit for tbe purpose for wbicb it was sold and purchased, then it would be your duty to answer tbe issue nothing.” This instruction was repeated in substantially similar form.
It is apparent tbat plaintiff’s case tbat be owed part but not all was not properly presented to tbe jury, nor was tbe jury instructed tbat tbe purpose of plaintiff’s suit was to reduce tbe amount claimed as balance due on tbe contract price of tbe bay, in proportion to tbe amount of bay delivered wbicb was unfit for use, if they found any substantial portion of it was unfit. Tbe jury should have been given opportunity, if they found in accordance with plaintiff’s evidence, to award less than tbe whole of defendant’s claim. Davis v. Morgan, ante, 78.
*220Athough, Tinder the maxim of the common law caveat empior, there is no implied warranty as to quality in the sale of personal property, the seller is nevertheless held to the duty of furnishing property in compliance with the contract of sale and such as shall be capable of being used for the purpose intended. Ashford v. Shrader, 167 N. C., 45, 83 S. E., 29; Furniture Co. v. Mfg. Co., 169 N. C., 41, 85 S. E., 35; Swift & Co. v. Aydlett, 192 N. C., 330, 135 S. E., 141; Williams v. Chevrolet Co., 209 N. C., 29, 182 S. E., 719. In the expressive language of Lord Ellenborough in Gardner v. Gray, 4 Campbell, 143, “the purchaser cannot be supposed to buy goods to lay them on a dunghill.” In the Ashford case, supra, the contract was for 600 boxes of oranges. Proof that one-third of them were unusable was held sufficient to support recovery pro tanto on the ground of breach of implied warranty.
Other exceptions noted and brought forward in plaintiffs appeal have not been considered, as, for the reasons stated, there must be a new trial, and the questions therein raised may not be again presented.
New trial.