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Statement by Walker, J.:
of this contract are unauthorized, and will This civil action was tried before Whed not be recognized by this company." bee, judge, and a jury, at November term, Under this contract, in the spring of 1913, 1914, of Franl.lin superior court.
plaintiff shipped and delivered to defendPlaintiff is a ma. facturer of fertilizers, ant 80 tons of 8-2-2 fertilizer. On July 1, and defendant a merchant of Louisburg, 1913, in payment therefor, defendant exewho deals in fertilizers, selling them on
cuted to plaintiff notes aggregating $1,credit to farmers. On January 31, 1913,
050.75, which said notes were indorsed by defendant purchased fertilizers from plain. January and February, 1914. Upon ma
K. P. and J. P. Hill, and were payable in tiff under a written contract; the provi. turity of said notes, and long after the sions thereof, material to this case, being
crops, under which the fertilizer was used, as follows:
had been harvested, defendant wrote plain“And it is further understood and agreed tiff several times and promised to pay the that the fertilizer named is furnished with notes, as will appear from letters written the guaranty of analysis printed on the from January to May, 1914, and set out in sack, but not of results from its use. Ver- the record. In January, 1914, defendant bal promises that conflict with the terms' sought to renew its contract with plaintiff, to show that it had no effect on his crops. / seems to differ from the view expressed by He must show by this and by other proof the same court in Armour Fertilizer Works that it did not contain the ingredients of v. McLawhorn, 158 N. C. 274, 73 S. E. 883, the guaranteed analysis. If he only shows where it was held that the measure of damthat it did not have any effect on his crop, ages was the difference in price between the that is not sufficient, under the ruling of fertilizer contracted for and that furnished, this court in the case of Hamlin v. Rogers, and the court, in approving the exclusion of supra.”
evidence of "the difference in the looks and Allen v. Young, 62 Ga. 617, is sufficiently i nature of crops on different farms on which dealt with in the principal case.
this fertilizer was used, and the crops under In De Loach v. Hardee's Son & Co. 64 which he used other fertilizers," said. “The Ga. 94, under a contract which so far as only pertinency of such evidence would be our subject is concerned was substantially the inference that the ingredients were not similar to that in the Allen Case, it was as represented. This would be too remote, held that it was error to refuse to allow depending upon the nature of the soil, the plaintiff to show the effect of the fer- weather, cultivation, and the like. The best tilizer on his crops as strengthening the evidence is the analysis by the Agricultural testimony of a chemist that the fertilizer Department. When the defendant ascerwas below standard,--especially where there tained therefrom the deficiency in the qualiwas evidence that when up to the standard ty of the fertilizers, it was his duty to have it had helped production. The court con- bought fertilizing materials or ingredients sidered this holding as in accord with the to make good the deficiency. Not having Allen Case, and said: "While by the ex- done so, he can properly claim only the press terms of his contract the defendant abatement of the price by reason of such cannot plead that the practical result of deficiency, and that he has been allowed.” the use of the guano was that it made noth- But HAMPTON GUANO Co. v. HILL LIVE ing, and defend himself on that ground, Stock Co. has been followed in Carter v. and therefore cannot introduce evidence for McGill, N. C. —, 84 S. E. 802, holding that purpose; yet such evidence is admis- that a breach of a warranty that the fersible to strengthen the testimony of the tilizer should be of “the standard grade" chemist that the guano did not come up to might be shown by proof that the fertilizer the stipulated standard, and to show that was worthless by showing the results of its by its failure to meet the standard agreed use. The court said: “The purchaser of upon the defendant was damaged. If it came the fertilizer may show a breach by the up to the stipulated standard, it is wholly effect of the use of it upon his crops, proimmaterial whether it made a lock of cot- vided he first lays the foundation for such ton or grain of corn; but the fact that it proof by showing that it was used under made neither is evidence that it did not conditions favorable to a correct test of its come up to that standard, especially where value, such as land adapted to the growth the evidence is, as in this case, that other of the cotton, proper cultivation and tillage, sea fowl guano which came up to the propitious weather or seasons; the general standard, or nearly so, did help the pro- purpose being to exclude any element duction largely."
which would render the evidence uncertain In Jones v. Cordele Guano Co. 94 Ga. 14, as to the cause of the loss or diminution of 20 S. E. 265, quoted from in the principal the crop or rid it of its speculative charcase, it was held that evidence of the failure acter. It may be somewhat difficult in of the guano to benefit the defendant's crops practice to apply the rule, but it can be done would be admissible after evidence of an by proper attention to the limitations on analysis by an expert.
this kind of evidence, and we have so held, While the cases are distinguishable on at this term, in HAMPTON GUANO Co. v. the facts the holding in the principal case' HILL LIVE STOCK Co."
B. B. B.
and to purchase 250 tons of the same fer-, ical analysis by the state chemist or other tilizer '(being over three times as much as person, and that, until such analysis was it had purchased in 1913) under a con- offered, evidence as to its effect upon crops tract identical with the first one, but plain was incompetent and inadmissible; and, tiff refused to ship the goods because de- fifth, because Revisal, SS 3949-3951, as fendant had not paid for those purchased amended by Public Laws of 1911, chap. 92, under the contract above referred to. At provides that the analysis therein referred no time prior to the institution of this ac- to is the best evidence of the contents of tion aid defendants ever claim or contend said fertilizers. There were
some other that the fertilizer delivered in 1913 was specific grounds, not necessary to be stated. defective in quality or otherwise, or that the contract between the parties was inthey had any defense against said notes; troduced in evidence, and shows that the on the other hand, they recognized their fertilizer was guaranteed to contain the liability upon said notes, and promised to ingredients and in the porportion stated on pay the same, expressing regret that a the certificate of analysis printed on the scarcity of money had prevented them from sack, before the sale by plaintiffs, which making payment at maturity. Defendants shows the contents to be 8 per cent of phosfailing to comply with their promises to phoric acid, 2 per cent of ammonia, and 2 pay said notes, this action was instituted per cent of potash. Plaintiff demurred on June 18, 1914, to recover the amount ore tenus to the answer and counterclaim, due thereon. Defendants answered, admit- upon the following grounds: ting the execution and nonpayment of the “(1) It failed to state or allege wherein notes, but pleading as a counterclaim that the defendants, or either of them, had been it had sold the fertilizer to its customers damaged. (2) It fails to allege or state, under warranties that the goods were in except in general terms, that defendants, or every respect highly efficient, suitable and either of them, have suffered any damage fit for the fertilization of the crops for whatever, actual or special. (3) It fails which they were recommended; that their to specify or allege any grounds upon which customers complained to them that the defendants base their claim for damages. goods were not fit or suitable and did not (4) It fails to specify wherein defendants, measure up to the standard and quality or either of them, have been damaged in warranted; and that defendant had suffered any manner whatsoever, even if the ferdamage thereby.
tilizer was not as guaranteed in the conUpon the trial defendant, over the ob- tract. (5) It fails to allege that any jection of plaintiff, offered evidence from chemical analysis has been made by the Agripersons who had used fertilizers purchased cultural Department, or anyone else, and from defendant in 1913, tending to show any of the ingredients found to be deficient. that the fertilizer so purchased was in bad (6) It admits the execution of the contract mechanical condition, being lumpy and off containing an express warranty as to analcolor; that it did not assimilate or was not ysis as shown on the sacks, and no implied taken up by the soil and did not fertilize warranty as to results can be set up or the crops; that they had used it under their considered.” crops with poor results and made bad crops; The demurrer was overruled, and plainand that in their opinion the fertilizer tiff excepted. was not worth as much
as they were The jury returned the following verdict. charged for it. Plaintiff objected to all “(1) Are the defendants indebted to the this evidence, repeating the objections, until plaintiff on account of the notes sued on, the court ruled that all such testimony and, if so, in what sum? Answer: should be considered as objected to. It was $1,060.28, with 6 per cent interest on $525 objected to: First, because the effect from January 15, 1914, until paid, and 6 thereof was to vary the written contract per cent interest on $525.75 from February between the parties, which expressly pro- 14, 1914, until paid, and interest on $9.53 vides that the plaintiff did not in any way from May 4, 1914, until paid. guarantee the effect or results from the “(2) Did the plaintiff warrant the feruse of the fertilizer; second, because said tilizer to contain 8 per cent available phostestimony tended to set up a new contract phoric acid, 2 per cent ammonia, and 2 per guarantying results from its use, whereas cent potash, and suitable for use as a ferthe written contract expressly limited the tilizer of crops? Answer: Yes. warranty to the analysis appearing on the "(3) If yes, was said fertilizer, when de sacks; third, because said testimony in no livered to defendant, as warranted ? Anway tended to show that the fertilizer did swer: No. not contain the constituents in the quan- “(4) What damages, if any, are defendtities guaranteed by the analysis; fourth, ants entitled to recover of plaintiff? Anbecause there was no evidence of any chem-'swer: $1,061.25.”
The court gave the following instructions, Wooten v. Hill, 98 N. C. 53, 3 S. E. 346; upon the second and third issues, to which Von Hoffman v. Quincy, 4 Wall. 552, 18 exception was taken:
L. ed. 409; Lehigh Water Co. v. Easton, 121 “The contract itself says that it is guar-U. S. 391, 30 L. ed. 1060, 7 Sup. Ct. Rep. 916; anteed, and warrants the purchaser that it Armour Fertilizer Works Co. v. McLawcontains 8 per cent phosphoric acid, 2 per horn, 158 N. C. 274, 73 S. E. 883; Hamlin cent ammonia, and 2 per cent potash; and v. Rogers, 78 Ga. 631, 3 S. E. 259; Scott the law says, in addition, that it is suit- v. McDonald, 83 Ga. 28, 9 S. E. 770; Jones able for the purpose for which it is sold." v. Cordele Guano Co. 94 Ga. 14, 20 S. E.
“If you believe this evidence, I charge 265; Yarborough v. Hughes, 139 N. C. 209, you, as a matter of fact, to answer this 51 S. E. 904. issue, 'Yes,' that the plaintiff did warrant Independent of the statute requiring an the fertilizer to contain 8 per cent phos- analysis by the state chemist, the evidence phoric acid, 2 per cent ammonia, and 2 offered by defendant was so speculative per cent potash, and that it was suitable and uncertain that a verdict should not be for use as a fertilizer of crops."
allowed to be predicated thereon. “If the evidence satisfies you by its Roberts v. Cole, 82 N. C. 294; Bell v. greater weight that it did not contain 8 Reynolds, 78 Ala. 511, 56 Am. Rep. 52; per cent phosphoric acid, 2 per cent am- G. Ober & Sons Co. v. Blalock, 40 S. C. 31, monia, and 2 per cent potash, or that it was 18 S. E. 265; Armour Fertilizer Works v. unfit for use as a fertilizer, and you are McLawhorn, 158 N. C. 274, 73 S. E. 883. satisfied of either of these facts by the There is no implied warranty of fitness greater weight of the evidence, I charge in the sale of personal property. you to answer the third issue, 'No.'”
Lanier v. Auld, 5 N. C. (1 Murph.) 138; Plaintiff excepted to the judgment, which Dickson v. Jordan, 33 N. C. (11 Ired. L.) was entered upon the verdict, and appealed. 166, 53 Am. Dec. 403; Woodridge v. Brown,
149 N. C. 299, 62 S. E. 1076; 35 Cyc. 409; Messrs. A. C. Zollicoffer, J. P. Zolli- Rasin v. Conley, 58 Md. 59; Walker v. Pue, coffer, and McIntyre, Lawrence & Proc- 57 Md. 155; G. Ober & Sons Co. v. Blalock, tor, for appellant:
40 S. C. 31, 18 S. E. 264; Mason v. Chap. The evidence as to the effect of the fer- pell, 15 Gratt. 572; Jackson v. Langston, tilizer and of results from its use was in. 61 Ga. 392; Wilcox v. Owens, 64 Ga. 601. competent and should have been excluded, As the contract is in writing and contains because the effect thereof was to vary and an express warranty of quality, this excludes contradict the written contract.
any implied warranty of fitness. Basnight v. Southern Jobbing Co. 148 N. DeWitt v. Berry, 134 U. S. 306, 3, L. ed. C. 356, 62 S. E. 420; Dr. Shoop Medicine 896, 10 Sup. Ct. Rep. F36; Chase Hackley Co. v. J. A. Mizell & Co. 148 N. C. 384, 62 Piano Co. v. Kennedy, 152 N. C. 196, 67 S. E. 511; Walker v. Venters, 148 N. C. S. E. 488; W. F. Main Co. v. Griffin-Bynum 289, 62 S. E. 510; Walker v. Cooper, 150 Co. 141 N. C. 43, 53 S. E. 727; Robinson N. C. 128, 63 S. E. 681; Woodson v. Beck, v. Huffstetler, 165 N. C. 459, 81 S. E. 153; 151 N. C. 144, 31 L.R.A.(N.S.) 235, 65 S. Brooks Bros. Lumber Co. v. Case Threshing E. 751; Cobb v. Clegg, 137 N. C. 153, 49 Mach. Co. 136 Ga. 754, 72 S. E. 40; J. I. S. E. 80; J. I. Case Threshing Mach. Co. Case Threshing Mach. Co. v. McKay, 161 v. McClamrock, 152 N. C. 405, 67 S. E. 991; N. C. 586, 77 S. E. 848; Jackson v. LangAnderson v. American Suburban Corp. 155 ston, 61 Ga. 392; Farrow v. Andrews, 69 N. C. 131, 36 L.R.A.(N.S.) 896, 71 S. E. Ala. 96; Springfield Shingle Co. v. Edge221; Leonard v. Southern Power Co. 155 comb Mill Co. 52 Wash. 620, 35 L.R.A. N. C. 10, 70 S. E. 1061; Jeffords v. Albe- (N.S.) 275, 101 Pac. 233. marle Waterworks, 157 N. C. 10, 72 S. E. If damages were otherwise recoverable, 624; S. F. Bowser & Co. v. Tarry, 156 N. there could be no recovery based upon the C. 35, 72 S. E. 74; Armour Fertilizer Works evidence herein, because such damages are v. McLawhorn, 158 N. C. 275, 73 S. E. 883; I too vague, indefinite and conjectural to form Lytton Mfg. Co. v. House Mfg. Co. 161 N. a basis from which the jury could estimate C. 430, 77 S. E. 233; Allen v. Young, 62 the same. Ga. 619.
Boyle v. Reeder, 23 N. C. (1 Ired. L.) There being no evidence that the fertilizer 607; Roberts v. Cole, 82 N. C. 292; Reiger had been analyzed by the state chemist, evi- v. Worth, 127 N, C. 230, 52 L.R.A. 362, dence of the effect of the fertilizer upon 80 Am. St. Rep. 798, 37 S. E. 217; Winston crops was insufficient and incompetent to Cigarette Mach. Co. v. Wells Whitehead show a breach of warranty under the con Tobacco Co. 141 N. C. 284, 8 L.R.A.( N.S.) tract, or to show that the goods did not 255, 53 S. E. 885; Walser v. Western U. come up to the guaranteed analysis. Teleg. Co. 114 N. C. 440, 19 S. E. 366;
O'Kelly v. Williams, 84 N. C. 285; 'Hardison v. Reel, 154 N. C. 277, 34 L.R.A.
(N.S.) 1098, 70 S. E. 463; Armour Fer- | Reade, 6 T. R. 606, 3 Revised Rep. 273. tilizer Works v. McLawhorn, 158 N. c. Express warranty as to soundness and age 274, 73 S. E. 883; Carson v. Bunting, 154 excludes any implied warranty as to other N. C. 530, 70 S. E. 923; G. Ober & Sons qualities.” Co. v. Katzenstein, 160 N. C. 439, 76. E. What was said by Justice Brown in Chase 476; Bowen v. King, 146 N. C. 391, 59 Hackley Piano Co. v. Kennedy, 152 N. C. S. E. 1044; Pittsburg, J. E. & E. R. Co. 196, 67 S. E. 488, is very pertinent here: v. Wakefield Hardware Co. 143 N. C. 57, "We have recognized the principle that 55 S. E. 422; Pender Lumber Co. v. Wil- there can be no implied warranty of quality mington Iron Works, 130 N. C. 589, 41 in the sale of personal property where there S. E. 797; Willis v. Branch, 94 N. C. 149. is an express warranty, and that, where
Messrs. Ben. T. Holden, William H. a party sets up and relies upon a written Ruffin, W. H. Yarborough, Jr., and w. warranty, he is bound by its terms and must M. Person, for appellee:
comply with them. 30 Am. & Eng. Enc. The analysis by the state chemist is the Law, p. 199; W. F. Main Co. v. Griffinbest evidence of the constituent parts of Bynum Co. 141 N. C. 43, 53.S. E. 727. We fertilizers offered for sale, but such analysis recognize the further principle, applied by is not the only evidence admissible. us in that case, that a failure by the pur
Tomlinson & Co. v. Morgan, 166 N. C. chaser to comply with the conditions of the 557, 82 S. E. 953; Jones v. Cordele Guano warranty is fatal to a recovery for breach Co. 94 Ga. 14, 20 S. E. 265.
of the warranty in an action on it, or where, There was no contradiction or variation
as in this case, damages for the breach are of the terms of the written contract by the pleaded as a counterclaim in an action by admission of the evidence excepted to.
the seller for the purchase money." Defendant relied upon that implied warranty which runs with all sales of person cases that an express warranty of quality
well-considered alty, that the article sold was merchantable and that it was fit for some use or
excludes any implied warranty that the
articles sold were merchantable or fit for purpose, or the purpose for which it was sold, if sold for a particular purpose.
their intended use." De Witt v. Berry, 134 Benjamin, Sales, § 686; Main v. Field, U. S. 306, 33 L. ed. 896, 10 Sup. Ct. Rep. 144 N. C. 311, 11 L.R.A.(N.S.) 245, 119 536. Am. St. Rep. 956, 56 S. E. 943; Dr. Shoop
See also W. F. Main Co. v. Griffin-Bynum Family Medicine Co. v. Davenport, 163 Co. supra; Robinson v. Huffstetler, 165 N. C. 296, 79 S. E. 602; Ashford v. H. c. N. C. 459, 81 S. E. 753; Brooks Bros. Shrader Co. 167 N. C. 45, 83 S. E. 29. Lumber Co. v. Case Threshing Mach. Co.
136 Ga. 754, 72 S. E. 40. Walker, J., delivered the opinion of the It has been held that an implied warranty court:
cannot be set up, even under a code proWhen a person buys an article of per- vision, where the parties, by their contract, sonal property, he can require an express have expressly agreed upon a different warwarranty as to its quality, or he may rely ranty, whether it be more or less extensive upon the warranty which the law implies or limited (Jackson V. Langston, 61 Ga. in certain sales; but it has been well said 392; Farrow v. Andrews, 69 Ala. 96), and that:
also that if a specific kind of fertilizer, or “When he takes an express warranty, it other article of a certain description or will exclude an implied warranty on the name, is ordered, there is no implied warsame or a closely related subject. Thus ranty of fitness, but only one that it is the an express warranty of quality will exclude kind designated (35 Cyc. 409; Rasin v. an implied warranty of fitness for the pur- Conley, 58 Md. 59; G. Ober & Sons Co. v. pose intended, but an express warranty Blalock, 40 S. C. 31, 18 S. E. 264; Mason on one subject does not exclude an implied v. Chappell, 15 Gratt. 572; Walker v. Pue, warranty on an entirely different subject,” 57 Md. 155; Wilcox v. Owens, 64 Ga. 601). - an illustration of the latter being that an A party who relies upon a written contract express warranty of title will not exclude of warranty, as to quality or description of an implied warranty of soundness or mer- the property he has purchased is bound by chantability. 35 Cyc. 392.
the terms of the warranty. J. I. Case It was held in the early case of Lanier Threshing Mach, Co. v. McKay, 161 N. C. v. Auld, 5. N. Ç. (1 Murph.) 138, 3 Am. 586, 77. S. E. 848. He is not only held to Dec. 680:
the terms of the contract into which he "That the law will not imply what is not has deliberately entered, but he is not perexpressed, where there is a formal contract. mitted to contradict or vary its terms by Evan's Essay, 32; 1 Fonbl. 364; Bree v. parol evidence, as "the written word must Holbech, 2 Dougl. K. B. 654; • Cripps v. abide” and be considered as the only standard by which to measure the obligations | a construction of the contract, we should of the respective parties to the agreement, hesitate very long before adopting it, with in the absence of fraud or mistake, or other its disastrous consequences to both parties, equitable element. 35 Cyc. 379. There are which we cannot suppose they contemplated. numerous cases decided by this court, illus- The court, therefore, erred in charging the trative of this elementary rule in the law, jury that if the fertilizer did not contain as to written contracts. Moffitt v. Maness, the ingredients, and in the quantities, as 102 N. C. 457, 9 S. E. 399; Cobb v. Clegg, warranted, or if it was not suited to the 137 N. C. 153, 49 S. E. 80; Basnight v. purpose for which it was sold, they should Southern Jobbing Co. 148 N. C. 356, 62 answer the third issue in the negative, for S. E. 420; Walker v. Venters, 148 N. C. the special warranty and the provisions 389, 62 S. E. 510; Dr. Shoop Medicine Co. against any liability for results excluded v. J. A. Mizell & Co. 148 N. C. 384, 62 any implied warranty as to its suitableness S. E. 511; Walker v. Cooper, 150 N. C. for use in fertilizing crops. 128, 63 S. E. 681; Woodson v. Beck, 151 In Allen v. Young, 62 Ga. 617, where the N. C. 144, 31 L.R.A. (N.S.) 235, 65 S. E. contract and statute of the state were much 751; J. I. Case Threshing Mach. Co. v. like ours, it was said: McClamrock, 152 N. C. 405, 67 S. E. 991; “The notes given to the company for the and especially Armour Fertilizer Works v. price of the fertilizer having upon their face McLawhorn, 158 N. C. 275, 73 S. E. 883. a stipulation that the fertilizer was purThere are authorities which hold that there chased entirely upon the basis of the anais no implied warranty of quality in the lytical standard guaranteed by the company, sale of goods, but some of these are re- and that I [the buyer] will in no event hold viewed by this court in the late case of it responsible beyond such standard, nor in Ashford v. H. C. Shrader Co. 167 N. c. any wise for practical results,' the precise 45, 83 S. E. 29, and a warranty was said right of the purchaser was to receive an to be implied in certain excepted instances, article containing the chemical and fertibut they all relate to contracts which do lizing properties enumerated in the guarnot contain any express warranty of qual. anty, and these in the proportions and up ity. The subject is fully considered in that to the degree of strength held out as a case, and further comment, therefore, is not standard." required.
The same court, in that and other cases, Let us now examine the facts of this case discusses the competency and probative in the light of the foregoing principles. The force of evidence as to the effect of the par. main inquiry is as to the nature and scope ticular fertilizer, when used upon land, in of the special warranty and the rights and producing crops, and strougly intimates obligations of the parties springing there that such evidence is not admissible, where from. The warranty is made up of three the contract contains a provision that the elements: (1) That the fertilizer shall con- seller is not to be liable for results, and tain the ingredients in a specified propor- that, if it is competent, it should be retion, as stated in the analysis printed onceived with caution and in connection with each bag. (2) That the seller should not more direct evidence that the fertilizer did be held responsible for results in its actual not contain the ingredients guaranteed by use. (3) That the whole contract is therein the analysis, or as much of them as the expressed, and all other terms are unau- j analysis and certificate required. Hamlin thorized. No language could be more ex- v. Rogers, 78 Ga. 631, 3 S. E. 259; Scott v. plicit and no contractual obligation and McDonald, 83 Ga. 28, 9 S. E. 770; Jones v. right more definitely fixed. The warranty Cordele Guano Co. 94 Ga. 14, 20 S. E. 265. was drawn for the very purpose of prevent- The court said in Hamlin v. Rogers, ing the recovery of such damages as are, supra: "All that the party selling is rein their nature, very speculative, if not quired by law to guarantee is that the ferimaginary, and out of all proportion to the tilizer contains
the ingredients amount of money or price received by the [it is represented to contain]. (He) may seller for the fertilizer. If fertilizer com- or may not guarantee its effect upon crops. panies can be mulcted in damages for the
Parties have a right to make their failure of the crop of every farmer who own contracts.
Under the limited may buy from them, they would very soon guaranty contained in this contract and be driven into insolvency or be compelled that imposed by law, the defendant could to withdraw from the state, as the aggre- have shown that the fertilizer .. did gate damages, if the supposed doctrine be not contain the ingredients
indicarried to its logical conclusion, would be cated by the analysis made by the state ruinous, and the farmers in the end would chemist.” suffer incalculable harm. In view, then, Our statute (Revisal 88 3945 to 3957) of the probable results flowing from such provides for an analysis by the Department