Fertilizer Co. v. . Summerell ( 1932 )

This is an action to recover the balance due on two certain notes described in the complaint, to wit, the sum of $1,186.89 and interest, and the sum of $247.87 and interest. The notes sued on were executed by the defendant under his seal, and are payable to the plaintiff or its order. The said notes were due and payable on 1 November and 1 December, 1930, respectively. This action was begun on 18 February, 1931.

In his answer the defendant alleged that the consideration for the notes sued on was fertilizer sold to the defendant by the plaintiff; he alleges that the fertilizer delivered to him by the plaintiff was not the fertilizer which he purchased. He pleads in defense of plaintiff's recovery on the notes, want of consideration.

The issue submitted to the jury was answered as follows:

"Did the plaintiff fail to deliver to the defendant commercial fertilizer of the analysis guaranteed on the bag in accordance with the contract as alleged? Answer: No."

From judgment that plaintiff recover of the defendant the sum of $1,186.89, with interest from 1 May, 1930, and the sum of $247.87, with interest from 12 January, 1931, and the costs of the action, the defendant appealed to the Supreme Court. On the admissions in the pleadings offered in evidence by the plaintiff, the court held that the burden of proof on the issue submitted to the jury, without objection, was on the defendant. In this there was no error. TrustCo. v. Anagnos, 196 N.C. 327, 145 S.E. 609. The evidence offered by the plaintiff in contradiction of the evidence offered by the defendant was properly admitted. Swift Co. v. Aydlett, 192 N.C. 340, 135 S.E. 141. The evidence was submitted to the jury under instructions which are free from error. The defense relied on by the defendant was not sustained. There is no error in the judgment. It is affirmed.

No error.