The only evidence was that offered by plaintiff. All the evidence was to the effect that the transaction of February 23, 1955, was an even trade in which each vehicle was valued at $2,033.00.
In charging the jury, the court gave peremptory instructions in plaintiff’s favor on the first and third issues. As to the fourth issue, the instruction was as follows: “Now, if you have answered either one of the first three issues no, then you would answer the fourth issue ‘nothing;’ but if you have answered all of the first three issues yes, and come ,to consider the fourth issue, then if you believe the evidence and find the facts to be as all the evidence tends to show, you would answer the fourth issue $2,033.00.”
As appears from the quoted instruction and the judgment, the court held that plaintiff could not recover unless it established by jury verdict in this action that the 1954 Ford Victoria was used by defendants’ son on December 13, 1954, in the illegal transportation of intoxicating liquors upon which the taxes due the United States Government had not been paid. Moreover, it seems that plaintiff, when the original complaint was filed, had the same idea.
But, while relying on certain of the facts originally alleged, plaintiff, by amendment, based its cause of action on total failure of consideration. The complaint, as amended, apart from original allegations as to conspiracy and as to what occurred on December 13, 1954, alleged that plaintiff was entitled to recover the reasonable market value of the 1955 pickup truck delivered by it to defendants because defendants had no title to the 1954 Ford Victoria they delivered to plaintiff as full purchase price for the 1955 pickup truck. Liberally construed, the complaint, as amended, alleged a cause of 'action for damages on account of defendants’ alleged breach of their implied warranty of title to the 1954 Ford Victoria. Hodges v. Wilkinson, 111 N.C. 56, 15 S.E. 941; Martin v. McDonald, 168 N.C. 232, 84 S.E. 258; 46 Am. Jur., Sales sec. 403; 77 C.J.S. Sales sec. 334; 1 Williston on *25Sales, Revised Edition, sec. 218. Also, see Hendrix v. Motors, Inc., 241 N.C. 644, 86 S.E. 2d 448.
Plaintiff, upon exceptions aptly taken, assigns as error, inter, alia, (1) the submission of the second issue, (2) the court’s instructions relating thereto, and (3) the court’s action in basing judgment thereon.
True, defendants denied plaintiff’s allegations relating to facts referred to in the second issue. In this sense, the issue was raised by the pleadings. But it was not an issue “material to be tried,” G.S. 1-200; for final disposition of this ease did not depend upon the determination of this issue. Coulbourn v. Armstrong, 243 N.C. 663, 666, 91 S.E. 2d 912, and cases) cited. Whether the 1954 Ford Victoria was subject to forfeiture on account of use in violation of federal statutes was determinable solely as provided in federal ’ statutes.
Plaintiff alleged that defendants owned’'the 1954 Ford Victoria on December 13, 1954. Hence, in the factual situation disclosed by this record, it was incumbent upon plaintiff to "establish that thereafter, in legal proceedings binding upon defendants, defendants’ title to thé 1954 Ford Victoria was divested prior to the trade on February 23; 1955.
By answering the third issue, “Yes,” the jury found that the 1954 Ford Victoria was “subsequently seized from plaintiff by the Federal officers and confiscated by judgment of the United States District Court.” (Our italics) The third issue goes beyond plaintiff’s allegation. The allegation is that “the Federal Government . . . seized and confiscated said automobile.” Plaintiff did not plead a judgment of the United States District Court. It is noted that this action was instituted May 2, 1955, and that the judgment referred to was entered October 29, 1955, or thereafter.
Plaintiff offered in evidence the portion of a judgment of the United States District Court in a cause entitled, “In re United States of America v. One 1954 Model Ford Victoria Automobile, Motor No. U4NV 153435, Henry Vann Company, Inc., Civil No. 441, Fayetteville Division,” reading as follows:
“It is, therefore, ordered, adjudged and decreed that the said 1954 Ford Victoria, Motor No. U4NV 153435, be and the same is hereby condemned as forfeited to the United States of America and that Henry Vann Company, Inc. is not entitled to remission of forfeiture. It is further ordered that the United States Marshal for the Eastern District of North Carolina be authorized and empowered, and he is hereby directed, to deliver said motor vehicle to the Regional Commissioner of Internal Revenue, Treasury Department, Atlanta, Georgia, or his authorized representative, upon payment by said Regional Commissioner of the storage charges incurred on said motor vehicle.”
*26Thus, while the portion of the judgment offered in evidence identifies the 1954 Ford Victoria as the vehicle “condemned as forfeited to the United States of America/' whether such forfeiture is based on what occurred prior to February 23, 1955, is not shown. Plaintiff did not offer in evidence the portion of the judgment of the United States District Court containing that court’s findings of fact nor did plaintiff offer in evidence any portion of the record showing proceedings prior to judgment.
Upon this record, we express no opinion as to the legal effect of said judgment upon the rights of the parties to this .action. Suffice to say, neither the third issue nor the portion of the judgment offered in evidence was sufficient to establish that, in legal proceedings binding on defendants, defendants’ title to the 1954 Ford Victoria was divested prior to the trade on February 23, 1955.
For error in submitting the second issue and in basing judgment thereon, plaintiff is entitled to a new trial. Prior thereto, the parties may desire to ask leave to amend so as to draw the determinative issues into clearer focus.
New trial.
PARKER, J., not sitting.