EASTERN CAROLINA FEED & SEED COMPANY v. Mann

129 S.E.2d 488 (1963) 258 N.C. 771

EASTERN CAROLINA FEED & SEED COMPANY, Inc.
v.
John Rex MANN.

No. 23.

Supreme Court of North Carolina.

February 27, 1963.

LeRoy, Wells & Shaw, Elizabeth City, for plaintiff appellee.

W. C. Morse, Jr., and John H. Hall, Elizabeth City, for defendant appellant.

DENNY, Chief Justice.

Ordinarily, there is an implied warranty that feed is reasonably fit for the use contemplated by both the seller and the purchaser. Jones v. Siler City Mills, Inc., 250 N.C. 527, 108 S.E.2d 917; Keith v. Gregg, 210 N.C. 802, 188 S.E. 849; Poovey v. International Sugar Feed Number Two Co., 191 N.C. 722, 133 S.E. 12.

There can be no denial of the fact that the plaintiff knew for what purpose the feed furnished or sold by it was being used by the defendant. Therefore, in our opinion, the ruling sustaining the demurrer to the defendant's first counterclaim on the ground that no cause of action is stated with respect to the loss of profits or damages growing out of the sale of chicken feed to the defendant, which it is alleged contained deleterious substance or substances that caused the chickens involved to lay fewer eggs and a substantial part of those laid to be unfit for human consumption, was erroneous, and the defendant's exception and assignment of error challenging said ruling will be upheld on authority of Jones v. Siler City Mills, Inc., supra, and Perkins v. Langdon, 237 N.C. 159, 74 S.E.2d 634, and cited cases.

The defendant assigns as error the failure of the court in its charge "to declare and explain the law arising on the evidence upon the first and second issues in that the court did not state the evidence on behalf of defendant to the extent necessary to explain the application of the law thereto, especially his evidence tending to show that as to a part of said account he had paid the same in full, and that as to the remainder of said account, it was understood and agreed between the parties that the chickens were the property of the plaintiff and that the sole source of the payment for the feed and supplies was to be the eggs produced from the original 1200 pullets and from the sale of the pullets themselves, and that he, the defendant, was not to be liable for any monetary payment with respect to the feed and other items supplied by the plaintiff for and on account of said 1200 chicks or pullets."

Other similar assignments of error to the charge of the court bearing on the first and second issues, as well as other issues submitted, have been preserved and in our opinion are well taken and must be sustained.

The parties hereto waived a recapitulation of the evidence, whereupon the trial judge in his charge stated the evidence only in the form of contentions. We have repeatedly held that in a complicated case where the evidence is conflicting this is not a sufficient compliance with the requirements of G.S. § 1-180.

In Brannon v. Ellis, 240 N.C. 81, 81 S.E.2d 196, the parties waived a recapitulation of the evidence by the court and the jury was so informed. Even so, we said:

"* * * [S]uch waiver did not relieve the court of the duty to declare and explain the law arising on the evidence of the respective parties. Mack v. Marshall Field & Co., 218 N.C. 697, 12 S.E.2d 235. It is not sufficient for the court to read a statute or to state the applicable law bearing on an issue in controversy, and leave the jury unaided to apply the law to the facts. Chambers v. Allen, 233 N.C. 195, 63 S.E.2d 212; State v. Sutton, 230 N.C. 244, 52 S.E.2d 921; Lewis v. Watson, 229 N.C. 20, 47 S.E.2d 484, and cited cases.

"It is the duty of the court to state the evidence ``to the extent necessary to explain the application of the law' arising thereon. G.S. § 1-180. In both civil and criminal cases, it is imperative, in the charge to the jury, that the law be declared, explained and applied to the evidence bearing on the substantial and essential features of the case without any request for special instructions. Hawkins v. Simpson, 237 N.C. 155, 74 S.E.2d 331; Citizens National Bank v. Phillips, 236 N.C. 470, 73 S.E.2d 323; Childress v. Johnson Motor Lines, 235 N.C. 522, 70 S.E.2d 558; Howard v. Carman, 235 N.C. 289, 69 S.E.2d 522; Chambers v. Allen, supra; Martin Flying Service v. Martin, 233 N.C. 17, 62 S.E.2d 528; Smith v. Kappas, 219 N.C. 850, 15 S.E.2d 375; Ryals v. Carolina Contracting Co., 219 N.C. 479, 14 S.E.2d 531; Mack v. Marshall Field & Co., supra; Spencer v. Brown, 214 N.C. 114, 198 S.E. 630; Williams v. Eastern Carolina Coach Co., 197 N.C. 12, 147 S.E. 435.

"The court in the charge under consideration did not state the evidence to the extent necessary to explain the application of the law arising thereon as required by G.S. § 1-180. In fact, no evidence was stated except in the form of contentions, which does not meet the requirements of the statute. Citizens National Bank v. Phillips, supra; Howard v. Carman, supra; Mack v. Marshall Field & Co., supra. * * *" Sugg v. Baker, 258 N.C. 333, 128 S.E.2d 595; Bulluck v. Long, 256 N.C. 577, 124 S.E.2d 716; State v. King, 256 N.C. 236, 123 S.E.2d 486.

In the case of State v. Friddle, 223 N.C. 258, 25 S.E.2d 751, Barnhill, J., later C. J., in considering a question similar to that now before us, said: "The chief object contemplated in the charge of the judge is to explain the law of the case, to point out the essentials to be proved on the one side and on the other, and to bring into view the relation of the particular evidence adduced to the particular issue involved. Bird v. United States, 180 U.S. 356, 21 S. Ct. 403, 45 L. Ed. 570. The judge should segregate the material facts of the case, array the facts on both sides, and apply the pertinent principles of law to each, so that the jury may decide the case according to the credibilty of the witnesses and the weight of the evidence. State v. Rogers, 93 N.C. 523; State v. Jones, 87 N.C. 547; Guyes v. Council, 213 N.C. 654, 197 S.E. 121. A failure to do so must be held for reversible error."

In light of the foregoing decisions and authorities herein cited, we hold the defendant is entitled to a new trial, and it is so ordered.

New trial.