Citation Numbers: 145 S.E. 229, 196 N.C. 244
Judges: STACY, C. J.,
Filed Date: 10/31/1928
Status: Precedential
Modified Date: 1/13/2023
CONNOR, J., dissenting. Civil action to recover on a promissory note given for fertilizer warranted to be of high grade and expressly prepared for use in the cultivation of tobacco.
Defense was interposed on the ground of alleged failure of consideration; and a counterclaim was set up for loss of crops. A further counterclaim for assault and false arrest on the part of the officer who served the claim and delivery papers in this action was also pleaded.
Defendant offered two certificates of chemical analyses, one made by Robb Arnold, of Richmond, Va., and the other by W. G. Haywood, Fertilizer Chemist, North Carolina Department of Agriculture, Division of Chemistry, both showing deficiency of ingredients in the fertilizer, which were at first excluded on plaintiff's objection, but later admitted on objection being withdrawn. Notwithstanding this evidence, the court held that the analyses were not made as required by the statute, hence he declined to submit an issue on defendant's counterclaim for loss of crops, and instructed the jury that the chemical analyses could only be considered on the question of alleged want of consideration. There was *Page 245 no issue submitted as to the alleged assault and false arrest by the officer who served claim and delivery papers in the present action.
From a judgment in favor of plaintiff for the amount of the note the defendant appeals, assigning errors.
after stating the case: We think the trial court erred in limiting the use of the chemical analysis, made by the State Chemist, to evidence tending to show want of consideration. Fertilizer Co. v. Thomas,
There was no error, however, in declining to submit an issue as to the alleged assault and false arrest by the officer who served the claim and delivery papers issued in the present action, for the very good reason, among others, that the alleged cause of action, set up herein as a counterclaim, did not arise out of, nor is it connected with, the subject-matter of plaintiff's claim, and it did not accrue until after the institution of the present suit. C. S., 519 and 521; Phipps v. Wilson,
For the error, as indicated, a new trial must be awarded, and it is so ordered.
New trial. *Page 246